Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698940369572.pdf (South Africa)
Wednesday, 23 March 2022] No 43—2022] FOURTH SESSION, SIXTH PARLIAMENT PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA _____________________ ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS _____________________ WEDNESDAY, 23 MARCH 2022 _____________________ TABLE OF CONTENTS ANNOUNCEMENTS National Assembly 1.

Referral to Committees of papers tabled .......................................................................... 2 TABLINGS National Assembly and National Council of Provinces 1.
Minister of Justice and Correctional Services .................................................................. 3 2.

Minister of Sport, Arts and Culture .................................................................................. 3 3.

Minister of International Relations and Cooperation ....................................................... 4 Speaker and Chairperson .................................................................................................. 5 4.
COMMITTEE REPORTS National Assembly 1 1.

2.

Justice and Correctional Services ................................................................................... 40 Justice and Correctional Services ................................................................................... 42 National Council of Provinces 1.

2.

3.
Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour ................................................................................. 44 Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour ................................................................................. 47 Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour ............................................................................... 101 ANNOUNCEMENTS National Assembly The Speaker 1.
Referral to Committees of papers tabled (1) The following paper is referred to the Standing Committee on Finance for consideration and report: (a) Annual Performance Plan of National Treasury for 2022-23.

(2) The following papers are referred to the Portfolio Committee on Higher Education, Science and Technology for consideration and report: (a) Revised Strategic Plan of the Department of Science and Innovation for 2020 – 25.
(b) Annual Performance Plan of the Department of Science and Innovation for 2022-23.

(c) Annual Performance Plan of the Academy of Science of South Africa for 2022-23.

(d) Shareholder’s Compact of the Council for Scientific and Industrial Research for 2022-23.

(e) Annual Performance Plan of the Human Science Research Council for 2022- 23.

(f) Annual Performance Plan of the South African National Space Agency for 2022-23.
(g) Annual Performance Plan of the National Advisory Council on Innovation for 2022-23.

2 (h) Annual Performance Plan of the National Research Foundation for 2022/23 – 2024-25.

(i) Annual Performance Plan of the South African Council for National Scientific Professions for 2022-23.

(j) Revised Strategic Plan of the South African National Space Agency for 2020 – 25.

(k) Annual Performance Plan of the South African National Space Agency for 2022/23.
(l) Annual Performance Plan of the Technology Innovation Agency for 2022- 23.

TABLINGS National Assembly and National Council of Provinces 1.

The Minister of Justice and Correctional Services (a) Annual Performance Plan of the Office of the Chief Justice of South Africa for 2022/23.

2.

The Minister of Sport, Arts and Culture (a) Annual Performance Plan of the Department of Sport, Arts and Culture for 2022/23.

(b) Annual Performance Plan of the Afrikaanse Taal-Museum and Monument for 2022/2023.
(c) Annual Performance Plan of the Iziko Museums of South Africa for 2022 – 2023.

(d) Annual Performance Plan of Amazwi South African Museum of Literature for 2022/23.

(e) Annual Performance Plan of the Freedom Park for 2022/2023.

(f) Annual Performance Plan of Artscape for 2022/2023.

(g) Annual Performance Plan of the Market Theatre Foundation for 2022 – 2023.

(h) Annual Performance Plan of the Performing Arts Centre of the Free State for 2022 – 2023.
(i) Annual Performance Plan of the South African State Theatre for 2022 – 2023.

3 (j) Annual Performance Plan of the Playhouse Company for 2022/23.

(k) Annual Performance Plan of the Pan South African Language Board (PanSALB) for 2022 – 2023.

(l) Annual Performance Plan of Boxing South Africa for 2022/2023.

(m) Annual Performance Plan of the South African Heritage Resources Agency for 2022 – 2023.

(n) Annual Performance Plan of the National Museum - Bloemfontein for 2022/23.
(o) Annual Performance Plan of Robben Island Museum for 2022/23.

(p) Annual Performance Plan of uMsunduzi Museum for 2022/23.

(q) Annual Performance Plan of the War Museum of the Boer Republics for 2022/23.

(r) Annual Performance Plan of the National Film and Video Foundation for 2022/23.

(s) Annual Performance Plan of the Luthuli Museum for 2022/2023.

(t) Annual Performance Plan of the KwaZulu-Natal Museum for 2022/2022 - 2024/2025.
(u) Annual Performance Plan of the Nelson Mandela Museum for 2022 – 2023.

(v) Annual Performance Plan of the Institute for Drug-Free Sport for 2022/2023.

(w) Annual Performance Plan of the William Humphreys Art Gallery for 2022/23.

(x) Annual Performance Plan of the Ditsong Museums of South Africa for 2022/23.

(y) Annual Performance Plan of the South African Library for the Blind for 2022/2023.

(z) Annual Performance Plan of the National Library of South Africa for 2022 – 2023.
(aa) Annual Performance Plan of the National Arts Council for 2022/23.

(bb) Annual Performance Plan of the National Heritage Council for 2022 – 2023.

(cc) Annual Performance Plan of the Mandela Bay Theatre Complex for 2022/23.

3.

The Minister of International Relations and Cooperation (a) Annual Performance Plan of the Department of International Relations and Cooperation for 2022 – 2023.

(b) Revised Strategic Plan of the Department of International Relations and Cooperation for 2020 – 2025.
4 (c) Strategic Plan for of the African Renaissance and International Cooperation Fund (ARF) for 2020 – 2025 and Annual Performance Plan for 2022 – 2023.

4.

The Speaker and the Chairperson DELEGATION REPORTS ADOPTED BY THE PARLIAMENTARY GROUP ON INTERNATIONAL RELATIONS (PGIR) ON 04 MARCH 2022.

(Continuing from 22 March 2022) (a) Report of the 3rd Eurasian Women Forum, St. Petersburg, Russia, 13 – 15 October 2021.

5 REPORT OF THE 3RD EURASIAN WOMEN FORUM ST PETERSBURG, RUSSIA, 13-15 OCTOBER 2021 6 1.
Background and Overview The purpose of this report is to give an account of the outcomes of the third Eurasian Women`s Forum which took place from the 13-15 October 2021, St Petersburg, Russia.
The South African Deligation consisted on the following; • Speaker of the National Assembly: Hon N Mapisa-Nqakula: Head of Deligation • Mr C Nqakula: Spouse to the Honourable Speaker • Hon G Boroto: House Chairperson • Ms N Nojozi: Executive Director in the Office of the Speaker • Ms Z Kula: Executive Assistant to the Speaker • Mr S Makhabela: Executive Secretary to House Chairperson • Ms N Cedile: Section International Relational and Protocol • Mr M Ngese: Researcher International Relation and Protocol The Parliament of the Republic of South Africa together with Parliamentarians, leaders of executive bodies of state power from many countries of the world, representatives of business and science communities, and non-governmental organisations from the Member Nations of the Commonwealth of Independent States and of the Shangai Cooperation Organisation, prominent figures of the international women’s movements participated in the activities of the Forum.
The Forum also experienced several bilateral engagements on its fringes between Speaker Hon Nosiviwe Mapisa-Nqakula and Chairperson of the Russian Parliament, Hon Martvieko.

The Forum builds on the strengthening integration across the Eurasian Economic Union, the Commonwealth of Independent States and Shanghai 7 Cooperation Organization, as well as on the mainstreaming of women’s role in addressing both domestic and global challenges within the Eurasian space.
Equally, it is an aim of the Forum that countries outside these formations would eventually be part in the working relationship foisted by the Forum.

This would lead to the intensification of efforts towards building a just world order.

The aforesaid objectives find relevance to South Africa`s policy positions of advancing women`s empowerment, gender equality and dismantling of the system of patriarchy.
The overriding theme of this year’s proceedings was premised on the subject of “Women, A Global Mission in a New Reality”.
Key amongst the sub- themes our Members of the delegation participated on included the following; • Women, A Global Mission in a New Reality • Womens Mission to shape a New Agenda for Peace and Trust • The Role of Women in the Integrated Development of the African Continent • Side-line Bilateral Relations between the Russian Parliament and the Parliament of the Republic of South Africa 2.
Message of Solidarity from the President of Russia The proceedings of the 3rd Eurasian Women`s was Officially opened by the President of the Russian Federation, His Excellency President Putin.

President Putin remarked that since the inception of the Forum in 2015, it has confidently gained the place among reputable International Platforms, which can be confirmed by the platform current representation.
It has brought women leaders, politicians and entrepreneurs and public activists across 100 countries which is incredible in today’s conditions.

It has brought together women leaders: politicians, entrepreneurs and public activists from over 100 countries, which is incredible in today’s conditions.

The Forum’s cooperation and interaction with such associations as BRICS, APEC, UNIDO, and W20 is growing.

8 The modern dynamically changing world sets new goals for society and states.
Women are playing an increasingly significant role in addressing them.

These include sustainable economic development, the global climate agenda, ecology and environment protection, as well as new approaches to education as a process that accompanies people throughout their lives, and the ambition to build it on more fair and balanced principles of the social support system.

He further remarked that coronavirus pandemic and overcoming its consequences have also become a global challenge.
All over the world, women doctors and medical workers have come to the forefront of the fight against the pandemic, taking on the hardest work.

Millions of people, without any exaggeration millions of people all over the world are grateful to them for saving their lives.

Women, with their keen understanding of the value of life, compassion and mercy, have always had a special mission in healthcare.
I am confident that it will remain the same in the future, including in determining further actions in the healthcare sector, pharmaceutics, and protection of health in general, with due account of the lessons of the pandemic.

Women’s activities in searching for responses to global and local challenges, as well as their active involvement in all spheres of life serve common interests and help to discover the human potential at its best.
Today it seems to be the key factor for progress and advancement, as well as specific changes for the better all over the world.

President Putin further stated that on the global scale, a lot more should be done for the full implementation of women’s rights, in order to ensure the possibility of their free, non-discriminatory participation in all spheres of life everywhere.
Even in economically developed countries – he follow these discussions and see them – even there, imbalance and inequality in career planning and in wages are often recorded.

The Eurasian Women’s 9 Forum, as a platform for international dialogue, new initiatives, and development of common approaches to global problems, makes the realistic achievement of the goals you discuss at this forum closer.

3.
3.

Discussion and Analysis: 3.1 Plenary Sessions: Women, A Global Mission in a New Reality Hon Speaker Nosiviwe Mapisa Nqakula was among the Speakers of Parliaments who opened the Plenary sessions and the conference on the topic of “Women, A Global Mission in a New Reality.

In her keynote address Speaker pointed out that the Theme correctly compels us, firstly to recognize that the agenda for women empowerment has not been spared by the socio-economic disruptor that is the CoVID-19 pandemic.
The CoVID-19 pandemic has not only brought about a major disruption to the global socio-economic landscape, but has also served to compound the impact of other disruptors that were already at play before its inception.

The case in point relates to Gender Based Violence and Femicide.
She noted that We have now through the Beijing Declaration and the Millennium Development Goals, recognized that women continue to experience inequalities in the social, economic and political space, despite the advancement of a few who get into positions of power and representation.
She further commended the sterling efforts and contributions taken by South Africa and India at both the World Trade Organization and United Nations level, for proposing initiatives aimed at temporarily wavering rules related to COVID-19 vaccines, medicines, diagnostics and other technologies.

This initiative co-sponsored by more than 60 countries cautioned against the idea of “vaccine-nationalism”.

Gender Based Violence and Femicide’ has culminated to what is now characterized as the ‘second pandemic’.
As part of the efforts in responding to this scourge, the government of the Republic of South Africa has adopted a 10 ‘National Strategic Plan’ for the Prevention of GBV and Femicide.

The fundamental focus of the plan is to forge a coordinated approach and measures to prevent the continued escalation of GBV and Femicide within the country.
She further called for this network to undertake as one of its roles, to help support governments in creating and advancing an enabling environment to level the playing field going forward in ensuring social justice and protection of vulnerable sections of our society, especially the poor and rural women.

In doing so, it should provide opportunities for increased access to universal quality education by targeting mainly young girls and women.
This will form the bedrock upon which this new reality should be anchored, to bring more benefits for the cause of advancing gender equality globally.

4.Womens Mission to shape a New Agenda for Peace and Trust This issue of Gender-based Violence and Femicide at hand cannot be isolated from the entire agenda of ‘Women: Peace and Trust’.
When we address this agenda of women, peace and trust, we must always bear in mind that women continue to play a central role in peacekeeping and mediation as outlined in the United Nations Security Council Resolution 1325 (UNSC -1325).

This resolution recognises that women are victims of conflict in many forms.

The complex nature under which women find themselves lead them to sometimes opting for compromising solutions that often later provide the seeds of their own destruction and victimisation.
These include sexual exploitation, which mainly emanates from financial vulnerability and dependence on men as providers.

11 All these factors therefore places emphasis on the need to involve women as active participants in the peace making and conflict resolution initiatives.

It is however regrettable that in spite of this progress, women's participation in peace making and conflict resolution remains minimal.
This contradicts the very inherent nature and active role of women as ‘peacemakers and mediators’ in their social settings.

The struggle for dismantling the system of patriarchy, reversing its legacies, and advancing gender equality, lies at the heart of international solidarity initiatives.
In this regard, humanity should embrace the notion that ‘the world belongs to both men and women and that women cannot and should not remain at the periphery of these global initiatives and structural reforms whose form and content is to craft the ‘New Reality’ we are about.

5.
5.

Round Table: The Role of Women in the Integrated Development of the African Continent The Roundtable session was meant share experiences on how women from the different countries in the African continent and women from the Russian Federation can take advantage of the partnership of the Eurasian Women Forum in resolving challenges faced by women from various aspects.
This was in recognition of the advances made by women in Africa guided by the existing continental framework in the form of Agenda 2063 and the eight aspirations which should ultimately contribute to the Vision 2030 of Sustainable Development Goals.

The sessions was led by discussants who provided case studies from countries such as Liberia were once afflicted by conflicts and how women played a significant role in the resolution of conflict, peace mediation and peace building.
In this regard, suggestions call for the need to strengthen 12 Russia and Africa cooperation to advance this initiative for the benefit of all countries and the achievement of the Sustainable Development Goals.

It was further reiterated that this partnership should help eradicating the misconception about the African continent depiction as a place of conflicts which tend to ignore the development and technological advances that are taking place currently.
To this end, it was recommended that there should be mutual trade and Bilateral relations with Russia to take advantage of such opportunities.
The second case study was on the experiences from the Zimababwe First Lady who raised the following issues; • Zimbabwe experience in women have always been at the centre of development o the benefit • Mineral Resources and Tourism in Zimbabwe are areas in which Russia and Zimbabwe can pursue in partnership • Promotion of education with great quality in Zimbabwe can enrich their cooperation with Russian to the benefit of all the Member countries of the Forum.
To this end, it was recommended that there ought to be National Action Plans on women, peace and security in line with the tenets of Agenda 2063.
This should also address challenges relating to lack of access to land by women and improvement of agriculture and export on commodities and thereby promote African trade to the rest of the world • Collectively fight the scourge of the pandemic and its after effects • Bring Russian companies and industries in Africa • Promote women entrepreneurs and restore the dignity of women and improve the welfare of our people across populations • Prepare for the Russia Africa Summit 5.
Bilateral Relations between the Russian Parliament and the Parliament of the Republic of South Africa 13 The Forum also experienced several bilateral engagements on its fringes between Speaker Hon Nosiviwe Mapisa-Nqakula and Chairperson of the Russian Parliament, Hon Martvieko.
The meeting deliberated on the following key issues; • The need to further strengthen relations between the two countries on key strategic issues at multilateral forums such as Inter- Parliamentary Union (IPU) and BRICS Parliamentary Forum within the side-lines of IPU.
• BFICS Parliamentary Forum meets during IPU Assembly Conference twice a year and the Speaker in Russia Hon Matvienko and former Speakers of our Parliament have been very influential in this initiative in driving forward the programmes of this multilateral forum.
• Russia and South Africa were also instrumental in the drafting of the Protocol on BRICS Parliamentary Forum on June 2015 where the Parties declared their intention to strengthen and promote contacts at the leadership level of chambers, committees and groups of parliamentarians; perform inter-parliamentary exchanges and hold regular expert consultations; and create and develop new inter- parliamentary cooperation mechanisms • The two Parliaments within BRICS were also instrumental in the adoption of 2016 Japur Declaration in which BRICS Women Parliamentarians expressed commitment to intensify mutual cooperation and strengthen partnership on the dimensions of sustainable development, economic growth, social inclusion and environmental protection.
• The Draft Protocol further enables the interests of these countries in in further strengthening of the BRICS as an influential factor of global politics and economy and, at the same time, as a symbol of forming a fair multi-polar world, based on the principles of dialogue, democracy, non-interference in internal affairs and respect for the 14 sovereignty of nations, in which each nation has the right to choose its own historical path to assure a sustainable social and cultural development.
• The two Speakers committed on the need to revitalize and adopt the BRICS Protocol in the next IPU Plenary Assembly 15 (b) Report of the Inaugural Commonwealth Parliamentarians with disabilities (CPwD) Africa Region Conference, Nairobi, Kenya, 14 - 18 October 2021.
9.1 Commonwealth Parliamentarians with Disabilities_Resolutions 9.2 Commonwealth Parliamentarians_Outcome Statement 16 REPORT OF THE INAUGURAL COMMONWEALTH PARLIAMENTARIANS WITH DISABILITIES (CPwD) AFRICA REGION CONFERENCE 14TH TO 18 OCTOBER 2021 NAIROBI, KENYA 17 1.

CONTEXTUAL BACKGROUND The South African Delegation attended the Inaugural Commonwealth Parliamentarians with Disabilities Conference held in Nairobi, Republic of Kenya on 14 to 18 October 2021.
The South African Delegation was consist of the following Honourable Members and accompanying officials: • Hon.

Mrs. Lindiwe Bebee, MP, Leader of Delegation from the National Parliament; and • Hon.

Mr. Heinrich Charl Smith, MPL from Free State Provincial Legislature; The following officials accompanied and provided support to the Delegation: • Mr. Sthembiso Tembe, National Parliament; • Mr. Monnapule Matshediso, Free State; and • Mr. Mandla Goodwill Bebee- Assistant to Hon.
Bebee The Inaugural Conference of Commonwealth Parliamentarians with Disabilities was attended by Members of Parliament from the following five countries: • South Africa; • Uganda; • Tanzania; • Kenya; and • Sierra Leone 2.

OPENING SESSION AND KEYNOTE ADDRESS The opening session was attended by the Secretary General of the CPA Mr. Stephen Twigg who attended virtually and briefed the Conference about the Highlights of the CPwD Strategic Plan 2021-2024.

Hon.
Hon.

Justin B. N. Muturi, MP, the Speaker of the National Assembly of the Parliament of Kenya and Chairperson CPA Africa EXCO.

Hon.

Mr. Muturi was the Guest of Honour and delivered the Keynote address.

3.
OBJECTIVES OF THE CONFERENCE The following were the objectives of the Conference: • To bring together Members from the African Region to discuss and understand the Strategic Plan of the Commonwealth Parliamentarians with Disability (CPwD) Network and identify disability champions from each of the participating branches; 2 18 • To share information and experience in the national implementation of the rights of persons with disabilities; • To identify the challenges faced by PwDs and understand the role of CPwD in mitigating the challenges; and • Adopt resolutions to help mainstream considerations of persons with disabilities in CPA activities.
4.
DISCUSSION TOPICS OF THE CONFERENCE The following topics were presented and discussed during the Conference: • Highlights of the CPwD Strategic Plan 2021-2024; • Implementation of the UN Convention on the Rights of Persons with disabilities (CRPD) and other agreements: taking stock of successes and looking into the future; • Progress on commitments made at the Global Disability Summit in 2018: Country specific achievements; • Protection of persons with disabilities from all forms of violence: Addressing the challenges; • Participation of Persons with Disabilities in the Political Process; • Access to justice and fair treatment of persons with disabilities; • Mainstreaming disability programmes in the public and private Sector: Challenges and opportunities.
The Inaugural Conference for Commonwealth Parliamentarians with Disabilities was a watershed, historic and successful as it was the first of its kind to bring together Commonwealth Parliamentarians with Disabilities in Africa Region to discuss issues affecting them and to share their experiences.

The Conference achieved its objective when it adopted the Outcome Statement and Resolutions (See the attachments).

The next Conference will be held in the Republic of Tanzania in 2022.

5.
5.

ANALYSIS OF SOUTH AFRICA’S PARTICIPATION While the Delegation from South Africa (Hon.

Mrs. Lindiwe Bebee and Hon.

Mr. Smith participated well and proudly raised the South African Flag high, there was no proper 3 19 planning and coordination, including pre briefing.

Our Delegation met for the first time in Kenya without having met or received pre briefing in South Africa.

The reason for this shortfall was due to the short notice from the Host Country about the continuation of this Conference.
This disrupted our planning and preparations as there was no sufficient time to plan, prepare and coordinate our activities.

On the basis of the above, it is recommended that as part of our preparations for the next Conference in Tanzania in 2022, the South African Delegation must be well coordinated and must have a joint briefing before departure to ensure effective participation.
Secondly, it is recommended that going to the 2022 Commonwealth Conference of Parliamentarians with Disabilities in Tanzania, South Africa should consider to increase its delegation from two Members which were part of our Delegation to a sizeable number that will reflect our national reality of Members with disabilities.

The Outcome Statement and Resolutions are attached for your consideration.
4 20 (c) Report of the 51st Commonwealth Parliamentary Association Conference, Africa Region, 8 – 13 November 2021.

10.1 Letter – 51st CPA Submission of the Resolution_Annual Conference 21 anf REPORT OF THE 51st COMMONWEALTH PARLIAMENTARY ASSOCIATION CONFERENCE, AFRICA REGION, 08th 13th November 2021 1 22 Table of Contents 1.

Background and Overview ........................................................................................................... 2 2.
Messages of Solidarity .................................................................................................................. 4 3.

Issues Emanating from the Executive Committee Meeting ................................................. 6 4.
Highlights from the Regional Representatives Committee .................................................. 6 Election of the Chairperson of the CPA International 2022 ..................................................... 6 Celebration of Africa Day .................................................................................................................. 7 Roster for Regional Representatives ............................................................................................. 7 5.
Key Issues Emanating from Programme, Planning and Finance Committee ................. 7 Payment of Subscription Fees: ....................................................................................................... 7 6.

Key Issues Emanating from CWP Sub-Committee ................................................................ 8 7.

Discussions an Analysis from CWP Business Meeting: Presentation on creating an .

8 8.
8 8.

Discussion and Analysis: Key Issues Emanating from the Workshops: ....................... 11 The Role of African Parliaments in Combating COVID-19: Country Experiences ........... 11 Challenges of Implementing Sustainable Development Goals during the Pandemic: ... 12 Parliamentary Agenda for Promoting Investments in the Health Sector in Africa ........... 13 Gender Impact of Covid-19: Counting the Cost of Health Crisis Women and .................. 15 9.
Key Issues Emanating from the Annual General Meeting .................................................. 16 10.

Observations .............................................................................................................................. 16 11.

Recommendations .................................................................................................................... 17 1.
Background and Overview The purpose of this report is to give an account of the outcomes of the 51st Commonwealth Parliamentary Conference (CPA) Africa Region Executive Conference held in Nigeria, Abuja from the 08th 13 November 2021.

The Parliament of the Republic of South Africa together with the Provincial Legislatures is affiliated and participates in the political activities of the Commonwealth Parliamentary Association at both Africa Region and International level.
This participation fulfils one of 2 23 Parliament strategic objective premised on deepening and enhancing parliamentary international engagement and cooperation.

Parliament’s Strategic Plan places prime importance on increasing its capacity to represent the interests of South Africa in the international arena.
It further seeks to promote and facilitate the transformation of undemocratic governance structures and participate in rules based system that seeks to democratised multilateral institutions processes, building strategic partnerships around mutual interests and promote internationalism and solidarity through the interconnectedness of challenges amongst African countries in particular and developing nations in particular.
The convening of this conference is in accordance with article 16 (3) of the CPA Africa Region constitution which provides a platform for Executive Committee and the Secretariat to account for the activities of the Association.

The South African Parliament together with the Provincial Legislatures participated in the proceedings of the 51st conference under the theme “African Parliaments and the Challenge of COVID -19 Pandemic”.
The 51st conference follows the two after the 50th CPA Africa Region held in Tanzania, Zanzibar and the Commonwealth Parliamentary Conference organised in Uganda in 2019.

The conference follows after the circumstances of the COVID 19 pandemic that has engulfed the international community and led to huge loss of loss of lives and devastation of world economies and continue to exacerbate the triple challenges of poverty, inequality and unemployment.
It is against this background that the 51st CPA Africa region could not be organised in 2020 as most of the countries were subjected to complete lockdown protocols which affected the activities of all multilateral organisations and introduced a new culture of conducting activities on a virtual basis.
The 51st conference afforded parliamentarians across the length and breadth of Africa Region to deliberate and process the governance work of the Executive Committee, which emanates from its sub-committees that includes Regional Representative Committee, Programme, Planning and Finance Sub-Committee as well as issues relating to Commonwealth Women Parliamentarians.
It also provided a platform 3 24 for Members of Parliament to share experiences on topical issues that relate to the following: • The Role of African Parliaments in Combating COVID 19: Country Experiences • The Challenge of Implementing Sustainable Development Goals during the Pandemic: Threats and Opportunities • The gender Impact of COVID 19 pandemic: Counting the cost of health crisis on Women and Children in Africa • A Parliamentary Agenda for promoting investments in the health sector in Africa during and after the COVID -19 Pandemic The Annual General Meeting also processed reports emanating from the Executive Committee Meeting and presided over the elections in filling the vacancies of the position of Regional Treasurer, Vice Chairperson of the Executive Committee Meeting and Vice Chairperson of the Commonwealth Women Parliamentarians.
The Deputy Speaker of the National Assembly, Hon Lechesa Tsenoli, led the South African delegation The branches and sub-branches constituting the South African Parliament delegation included the following; • Parliament of the Republic of South Africa • Gauteng Provincial Legislature • Limpopo Provincial Legislature • Northern Cape Provincial Legislature • North West Provincial Legislature • Kwa-Zulu Natal Provincial Legislature • Western Cape Provincial Legislature 2.
Messages of Solidarity 4 25 The Official Opening Ceremony of the 51st Conference received messages of solidarity from a number of eminent persons, which include the Vice President of the Federation of Nigeria, His Excellency, Prof Yemi Osinbajo, The Speaker of the Parliament of Nigeria, Chairperson of the CWP Africa Region and the Secretary General of the CPA International.
Declaring the four-day conference, Vice President Prof Yemi Osinbajo called on parliamentarians to enact laws and policies that would guard against unwanted change of democratically elected governments.

He further urge parliamentarians to pay special attention on poverty and inequality, which has become a growing challenge in Africa under the prevailing circumstances of COVID-19.
Having noted that the pandemic has caused havoc and brought untold misery on about 6 million people in Africa, with women and children being the worst victims, he implored upon parliamentarians to strengthen their oversight function so as to ensure that the reconstruction process through recovery plans impacts in changing the lives of our people.
He also decried poor accessibility to electricity and poor climate change challenges, noted that Africa is in dire need of finance to mitigate climate change in order to have a climate friendly environment.

Whilst challenging the legislative arm of the State to come up with practical resolutions to enhance social, economic and political lives of Africans, Vice President tasked delegates to the CPA conference to discuss and bring up proactive legislation that would further tackle the pandemic.
The Secretary General of the CPA International, Mr Stephen Twigg reiterated that CPA has marshaled out a strategic 2022-2025 plan, which includes sustainable 5 26 development, gender, poverty and capacity building of parliamentarians.

He further stated the commitment of the CPA to change the status of the Association.

The Chairperson of the CWP informed the conference about the need to interrogate the issue of lopsided gender representation in African politics and governance structures.
This will encompass examining the nexus between patriarchal political systems, defective electoral laws, and women`s subordination through the sensitization workshops of the CWP.

She called on men of goodwill to join Commonwealth Women Parliamentarians in championing for the rights women and girls so at to ensure that burdens and opportunities of political and economic development are equally shared.

3.
3.

Issues Emanating from the Executive Committee Meeting The Executive Committee Meeting was convened to deliberate on matters and reports emerging from Sub-Committee Meetings.

4.
4.

Highlights from the Regional Representatives Committee Election of the Chairperson of the CPA International 2022 It was reported that: the South African Speaker of the National Assembly attended the G20 parliamentary summit and was approached by the Speaker of India and his delegation during a bilateral meeting who asked for CPA Africa’s support for the election of the Indian candidate as the Chairperson of CPA International at a conference to be held in Canada 2022.
Members took note that India has been a traditional ally of CPA Africa by supporting CPA Africa in various instances.

6 27 Celebration of Africa Day Members noted that Commonwealth Day Celebration has lost its importance and many Branches no longer celebrate the occasion.

Members therefore advised that the Day should be celebrated among member countries by organizing events which are aimed at articulating the common values of Commonwealth.
Roster for Regional Representatives The Sub-Committee noted that the CPA International Constitution stipulates that Regional Representatives hold office for a three-year term and should attend three CPA International Conferences before rotating out of their position.

The Sub- Committee recommended that CPA Africa align its constitution in line with the International constitution.

5.
5.

Key Issues Emanating from Programme, Planning and Finance Committee Payment of Subscription Fees: Members were informed that during the International Executive Committee Meeting, it was reported that many African countries have not paid their subscription fees.

Members were reminded that, failure to pay subscription fees members will not be allowed to attend the next CPC, this will in turn affect the decision making during the Meeting.
The Sub-Committee requests all Branches who have no paid both CPA Africa and CPA International subscription fees to make payment.

7 28 6.

Key Issues Emanating from CWP Sub-Committee The CWP Steering Committee met to receive reports from its Chapters and its noted that six Chapters which include South Africa, Botswana, Nigeria, Sierra Leone, Mozambique and Tanzania submitted its reports.
The Committee further made the following undertakings; • Chapters should involve male MPs in their gender mainstream agenda • Branches in Africa to support the review of discrimination laws so as to eradicate acts of violence committed against women and girls in the region • Chapters with low representation of women MPs, should strive to push for affirmation action seats Bill so as to increase women representation in their Parliaments 7.
Discussions an Analysis from CWP Business Meeting: Presentation on creating an enabling economic environment for women empowerment The presentation was delivered by Professor Sheriff Ghali Ibrahim, a Director of the Institute for legislative studies in University of Abuja.
The following are some of the salient issues raised by the presenter: • That women’s economic empowerment is the process by which women increase their right to economic resources and power to make decisions that benefit themselves, their families and their communities.

• Around 2 billion poor people around the world particularly women are financially excluded and women and girls make up the majority of the poorest people in the world today.
Laws in many countries restrict women’s economic opportunities, dictating the types of jobs that women can do, or giving husbands the right to prevent their wives from accepting jobs.

8 29 • The relative deprivation is the experience of being deprived of something to which one believes to be entitled.

It refers to the discontent people feel when they compare their positions to others and realize that they have less of what they believe themselves to be entitled than those around them.
• That some scholars of social movements explain their rise by citing grievances of people who feel deprived of what they perceive as values to which they are entitled.

Similarly, individuals engage in deviant behaviors when their means do not match their goals.

• The feelings of deprivation are relative, as they come from a comparison to social norms that are not absolute and usually differ from time and place.
• That the critics of this theory have pointed out that this theory fails to explain why some people who feel discontent fail to take action and join social movements.

• Reach the poorest of the poor of women in remote communities, such as landless labourers, smallholder agricultural producers, cross-border traders and factory and domestic workers.
• Support women farmers: The enduring perception of farmers as male – in the face of all evidence to the contrary – hinders the improvement of agricultural production and productivity.
• Expand women’s business opportunities through more than by ‘picking winners’: When designing programmes donors need to ask: will support for women’s enterprises result in enhanced employment and self-employment opportunities for women living in poverty 9 30 • Promote women’s access to credit: To build strong businesses, women need access to the full range of credit, banking and financial services.

Micro-finance can lead to indebtedness and increased exclusion unless programmes are well- designed.
Providing supplementary services increases women’s direct control over resources.

• Adopt a holistic approach: Social and political factors have significant influence on women’s ability to participate in the economy.

It is therefore important to pay more attention to factors such as culture and tradition, education and training, reproductive and sexual health, and unpaid care.
• Work in partnership: Effective implementation and scaling-up requires strong and innovative partnerships – including with women’s associations, the private sector, countries’ Ministries of Finance, Agriculture and Labour, and other donors.

• Integrate gender-specific perspectives into policies and programmes at the design stage: This means specifying gender equality as a goal and identifying unintended consequences and risks for women.
• Increase the focus on women’s employment: Address the barriers women face in accessing work, including public employment programmes, and provide relevant vocational training.

Social protection measures can enhance the productivity and participation of poor women in the labour market.

• Give more attention to unpaid care: Increase the recognition and value given to the ways in which care work supports thriving economies.
• Design infrastructure programmes to maximise poor women’s and men’s access to the benefits of roads, transportation services, telecommunications, energy and water.

10 31 • Promote more equitable access to assets and services – such as land, technology, innovation and credit, banking and financial services.

• The presenter concluded the presentation by indicating that policies should prioritize solving the difficulties women have faced throughout history.
He mentioned that some women experience less occupational opportunity, physical violence and abuse, and labor exploitation.

They suffer negative consequences from teenage marriages and pregnancies.

The presenter indicated that the policy should seek to protect their rights and promote female youths' interests and goals.

Due to time constraints, the meeting took a decision to put the discussions and deliberation session on the presentation in abeyance.
The meeting further agreed that the second presentation on “the role of political parties in promoting women participation in African political space” should be deferred the presentation to a future date to be determined by the CWP Steering Committee.

Both decisions were necessitated by the fact that the meeting needed more time to deal with part B of the programme which is the anchor of the meeting.

Part B comprises of CWP Business Meeting.

8.


Discussion and Analysis: Key Issues Emanating from the Workshops: The Role of African Parliaments in Combating COVID-19: Country Experiences During the presentations of the workshops parliamentarians recognised that COVID 19 has rapidly spread around 215 countries and territories emerging as an unprecedented health crisis with a heavy toll on human lives and is impacting on the livelihood of humanity.
A primary health crisis has transformed into an economic social disaster due to unparalleled restrictions on the movement of people as well as economic activities in the form of worldwide lockdown at the onset of the pandemic.
In responding to the challenge at hand delegates expressed their experiences and recommended the following: 11 32 • Call on African parliaments to be at the vanguard of policy strategies in combating Covid-19 by strengthening pandemic planning and preparedness; • further urged African parliaments to conduct proper oversight on strategies, appropriated funds, as well as loans and aids secured for the purpose of combating Covid-19; • Implore upon African parliaments to review laws on pandemics to conform to current realities while also engendering appropriate legislations to support economic development; • encouraged African governments to implement the Abuja Declaration which proposed the allocation of 15% of national budgets to the health sector; Challenges of Implementing Sustainable Development Goals during the Pandemic: Threats and Opportunities The COVID has brought into sharper focus the vulnerability of all humanity, irrespective of sovereignty, ideology or religion.
It has highlighted the uneven impact of such global threats on all economies regardless of the varying levels of development.

The COVID 19 pandemic has unavoidably led to serious setbacks in the work to attain the SDGs.

We must therefore do our outmost best to minimise.

While in these years since 2015, the world has seen some good progress in terms of success in the achievement of SDGs, this pandemic will clearly have an adverse impact on the momentum of achievement.
Delegates noted that most countries relocated their resources to combat COVID-19 thereby leading to regression in the attainment of Sustainable Development Goals and erasing some of the commendable achievements made so far.
To this end, the participants recommended the following: 12 33 • The world must take lessons from this crisis and envisage building more resilient and stronger societies to absorb such external shocks in future so that there is no further hindrance to the achievement of the 2030 Agenda (SDGs).

• A thorough assessment of, and research on, how far the pandemic is going to affect the achievement of SDGs in the short, medium, and long run and formulation of a clear roadmap for recovery are needed.
• Shared responsibility’, ‘global solidarity’ and ‘acting together’ should be the basic principles for responding to the socio-economic challenges posed by COVID-19, and the world must learn from this human crisis to ‘build back better’, rightly identified by the UN in its recent report on COVID-19 impact.8 • Redefining the roles of different stakeholders within the ‘New Normal’: the responsibilities have to be extended from the governments to the international community, multilateral organizations, private sector, civil society and even individuals, if we want to put up an effective and meaningful fight against the pandemic and its effect on sustainable development goals.
• COVID-19 has shown how small-scale humanitarian and philanthropic approaches at the micro-level can have a huge impact in fighting the challenges in difficult times, particularly in terms of resource mobilization.

We need to translate the same spirit in our approach towards achieving the SDGs in the post-COVID period.

• In keeping with the core principle of the SDGs, the world must continue taking special care of the most marginal and vulnerable segment of the society to ensure ‘no one is left behind’.
• African Parliaments to drive awareness campaigns on the need for vaccination against Covid-19 especially among African men in their constituencies.

• African Parliaments to ensure greater collaboration among African Parliaments in tackling the SDGs and challenges occasioned by COVID 19.
Parliamentary Agenda for Promoting Investments in the Health Sector in Africa during and After the COVID-19 Pandemic 13 34 The devastation effect caused by the global pandemic of COVID 19 did not only result in the loss of millions of lives across the globe, but it has caused immense damage to the economic and social stability in the developing countries such as the AU Member States in particular.
COVID 19 exposed the weaknesses of the health systems, poor infrastructure, inadequate investment and budget in in the health sector and our unpreparedness to deal with disasters of this nature.

The covid-19 pandemic heightened and brought to the fore issues of hunger, unemployment, disrupted supply chains and food insecurity, inequalities, interruption in education systems, difficulties of people with disabilities and mental health among others.
The delegates has expressed the following issues for consideration by different Parliaments: • African parliaments to promote legislations geared towards the provision of quality health care facilities and health insurance packages; • African governments to adopt a more multi-sectorial approach that includes the private sector in the approach to address the pandemic and health related issues; • African government to prioritize the adoption and institutionalization of research and development, especially on pharmaceuticals; • African parliaments to ensure that appropriations to the health sector are directed towards preventive health measures rather than corrective measures; • Propose the need to hold a CPA conference on medical innovation with a view to creating jobs, health systems and medical technology; • Encourage African governments to de-emphasize reliance on budget spending on health and seek alternative models of financing health investment; • Advise respective member states to implement declarations, pacts and agreements collectively entered into; • Further urge parliamentarians to be more decisive in tackling corruption 14 35 Gender Impact of Covid-19: Counting the Cost of Health Crisis Women and Children Both the mover and the seconder noted that countries witnessed increased incidences of societal ills such as domestic violence, teenage pregnancies, sexual offences and other crimes among others.
It was further recognised that the right to health is a fundamental right under International Human Rights Law.

It is also a critical component of the United Nations sustainable development goals, particular goal number three (03), and is recognized in at least 115 constitutions across the world, including the 55 Africa Union’s (AU) member states and is a key goal of the AU’s Agenda 2063.
To this end, participants saw an urgent need for governments to effectively tackle the covid-19 pandemic but lack the health infrastructure, research institutions and resources among others.
The following recommendations were suggested as mitigation measures; • African governments to target women and girls in their efforts to mitigate the consequences of the COVID-19 pandemic; • African parliaments to work assiduously towards mitigating incidences of domestic violence against women and children which no doubt increased during the COVID lockdown; • African governments to provide financial support to women in order to keep them economically afloat; • Encourage African governments to establish service centers that provide quick Covid-19 responses; • Further advised that all governments response plans, recovery packages and allocations of resources to accommodate the gender impacts of the COVID-19 pandemic; 15 36 9.
Key Issues Emanating from the Annual General Meeting Annual General meeting was convened to process the decisions of Executive Committee Meetings.
It further presided over the elections of the following positions: • Regional Treasurer: the position was rotated to Southern Africa and the candidate elected was the Speaker of Gauteng Legislature • Vice Chairperson of the Executive Committee: This position was rotated to Central Africa and the candidate elected was from the Parliament of Zambia • Vice Chairperson of the CWP: The position was rotated to East Africa and the candidate elected was from the Parliament of Rwanda.

10.
10.

Observations The 51st Conference has afforded parliamentarians a platform to shared experiences regarding the manner in which the pandemic has affected and destroyed the economies.

It has also brought about an opportunity for Members Parliaments to devise strategies aimed at strengthening oversight and the unique ways of enacting laws and policies aimed at responding to socio-economic disparities exacerbated by COVID-19.
It has refocused the multilateral to respond the challenge of climate change and energy crisis faced by many countries.

Progress has been registered on the question of the transformation of the CPA International as reported by the Secretary General.

The development of the 2022-2025 Strategic Plan should assist to measure the priorities of Association and contribute towards strengthening of multilateralism.
The question of equitable distribution vaccines and discourage vaccine nationalism has been expressed throughout the workshops and is reflected in the content of resolutions.

16 37 Gender related constraints emanating from gender based violence and fermicites was exposed and measures ought to be developed at policy formulation to curb the current impasse.

11.
Recommendations The following recommendations are suggested for the consideration of Members; • Strengthen multilateralism and acts of solidarity against vaccine nationalism • Encourage budgeting of the activities and planning of programmes elated to gender based violence • Exercise oversight in the implementation of Sustainable Development Goals • Strengthen awareness on the need vaccinate to save lives • Monitor the process of the implementation of the resolution on the transformation of the CPA • Harness more resources aimed at ensuring the effective and efficient functioning of E-Parliament • Invest in more research to ensure to advance reliable knowledge systems • Convene workshops aimed at reviving and embracement democratic values through CPA Africa Region • Strengthen oversight over the implementation of African Continental Free Trade and Africa`s AGENDA 2063 • Strengthen oversight over the implementation of reconstruction and recovery plans post-covid 19 17 38 COMMITTEE REPORTS National Assembly 39 1.
Report of the Portfolio Committee on Justice and Correctional Services on Amendments to Regulations for approval in terms of section 97(2) of the Child Justice Act, 2008 (Act No.

75 of 2008), dated 23 March 2022 The Portfolio Committee on Justice and Correctional Services, having considered the Amendments to Regulations for approval in terms of section 97(2) of the Child Justice Act, 2008 (Act No.

75 of 2008), reports as follows: 1.


Amendments to Regulations for approval in terms of section 97(2) of the Child Justice Act.

75 of 2008 were tabled on 15 February 2022 and referred to the Committee for consideration and report.

2.

Section 97(1) of the Child Justice Act, 2008, empowers the Minister to make Regulations after consultation, where appropriate, with Cabinet members responsible for social development, safety and security, education, correctional services and health.
In terms of section 97(2) of the Act, the Regulations must be referred to Parliament for approval.

3.

Regulations were published by Government Notice No.

R. 251 of 31 March 2010, and amended by Government Notice No.

R. 1337 of 1 December 2017.

4.

The Act is amended by the Child Justice Amendment Act 28 of 2019 and it is necessary to amend the Regulations to align them with the changes brought about by the Amendment Act.

5.
5.

The proposed amendments to the Regulations are largely consequential and include: • The increase of the minimum age of criminal capacity from 10 years to 12 years.

• Retention of the rebuttable presumption for children who are older than 12 years, but younger than 14 years.

• The manner of dealing with a child, depending on the age of the child, from the time of arrest to assessment, preliminary inquiry and until trial at the child justice court.
40 • The removal of the requirement that prosecutors must consider the cognitive ability of children when determining whether to prosecute a child.

• That the criminal capacity of the child will only be addressed during a plea and trial in a child justice court and not during the preliminary enquiry and for diversion purposes.
• Prohibiting a magistrate from dispensing with a pre-sentence report where the court may impose a sentence involving compulsory residence in a child and youth care centre or imprisonment.

• Technical amendments.

6.

The Amendment Act has not yet come into operation, as it is envisaged that the draft Regulations will come into operation on the same date.

Therefore, until Parliament has approved the amendments to the Regulations, a commencement date for the Amendment Act cannot be determined.
Recommendation 7.

The Committee recommends that the National Assembly approve Amendments to Regulations for approval in terms of section 97(2) of the Child Justice Act, 2008 (Act No.

75 of 2008).

Report to be considered 41 2.


Interim report of the Portfolio Committee on Justice and Correctional Services on the Cannabis for Private Purposes Bill [B 19 - 2020] (National Assembly – sec 75), dated 23 March 2022 The Portfolio Committee on Justice and Correctional Services (the Committee), having considered the Cannabis for Private Purposes Bill [B 19 - 2020], referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports in interim as follows: 1.
In Minister for Justice and Constitutional Development and Others v Prince 2018 (6) SA 393 (CC), the Constitutional Court declared the following legislative provisions unconstitutional, as they amount to an impermissible limitation of the right to privacy: • Section 4(b) (possession) and section 5(b) (dealing on the basis of cultivation) of the Drugs and Drugs Trafficking Act 140 of 1992 (the Drugs Act), read with Part III of Schedule 2 of that Act; and • Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act, read with Schedule 7 of Government Notice No.
R 509 of 2003.

2.

The Court suspended the order of invalidity for 24 months (by 17 September 2020) for Parliament to correct the constitutional defects.

Although the 24 months has been exceeded, there is no gap in the law as the Court provided a reading-in provision that ensures that an adult person will not be guilty of a criminal offence if they use, possess or cultivate cannabis for their personal consumption in private.

3.
3.

On 1 September 2020, the Cannabis for Private Purposes Bill [B19-2020] was introduced and referred to the Committee for consideration and report.

4.

The Committee was briefed on the contents of the Bills on 4 September 2020 and the Bill was then published for public comment.

5.
5.

The Committee was also briefed by the Department of Agriculture, Land Reform and Rural Development and the Department of Trade and Industry and Competition on the 42 25 August 2020 on the draft Cannabis Master Plan, which contains a strategy to industrialise and commercialise cannabis.

6.

The Committee received 55 written submissions and held public hearings on 31 August 2021 and 1 and 2 September 2021 on the virtual platform Zoom in which 26 individuals or organisations made oral submissions.

7.
The Bill, as introduced, broadly proposes to: • Respect the right to privacy of an adult person to possess cannabis plant cultivation material; to cultivate a prescribed quantity of cannabis plants; to possess a prescribed quantity of cannabis; and to consume cannabis; • Regulate the possession of cannabis plant cultivation material; the cultivation of cannabis plants; the possession of cannabis; and the consumption of cannabis by an adult person; Protect adults and children against the harms of cannabis; Provide for the expungement of criminal records of persons convicted of possession or use of cannabis; Delete and amend provisions of certain laws; and Provide for related matters.
• • • • 8.
Flowing from the public submissions and its pursuant deliberations, the Committee has identified certain subjects that the introduced Bill does not address and, therefore, in terms of Rule 286(4)(b) of the National Assembly Rules seeks the Assembly’s permission to extend the subject of the Bill to, in addition: • • Provide for commercial activities in respect of recreational cannabis; Provide for the cultivation, possession and supply of cannabis plants and cannabis by organisations for religious and cultural purposes on behalf of their members; and • Respect the right to privacy of an adult person to use cannabis for palliation or medication.
Report to be considered.

43 National Council of Provinces 1.
Report of the Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour on the Employment Equity Amendment Bill [B 14B - 2020], dated 22 March 2022 The Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour, having considered the subject of the Employment Equity Amendment Bill [B 14B - 2020] (National Assembly – sec 75), referred to it, reports that it has agreed to the Bill.

1.
1.

Introduction The Employment Equity Amendment Bill was referred to the Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour on 16 November 2021.

The Committee received a briefing from the Department of Employment and Labour on the Bill on 16 November 2021.

2.
Purpose of the Bill The purpose of the Employment Equity Amendment Bill [B 14B-2020] is to amend the Employment Equity Act of 1998, so as to amend definition; to insert certain definitions; to substitute a definition and to delete a definition; to provide for the Minister to identify sectoral numerical targets in order to ensure the equitable representation of suitably qualified people from designated groups; to provide criteria for the Minister to issue certificates; and to provide for matters connected therewith.
1 44 3.

Process followed The Committee invited public comment through advertisements in newspapers and on radio.

The closing date for written submissions was 22 January 2022.

The advertisement was published in all 11 official languages.

The Committee received submissions from the following stakeholders in respect of the Bill: 1.

Businesses Unity South Africa 2.

Banking Association of South Africa 3.

Financial Intermediaries Association of South Africa 4.
Black Business Council for Built Environment 5.

Association for Savings and Investment South Africa and South African Insurance Association 6.

Master Builders South Africa 7.

Congress of South African Trade Unions 8.

Construction Alliance South Africa 9.

South African Civil Engineering Contractors.


The Committee held public hearings on 22 February 2022, received responses from the Department of Employment and Labour in respect of responses on the submissions received on 8 March 2022 and held deliberations on 15 March 2022.

2 45 4.

Outcome of Committee’s consideration of the Bill Five members of the African National Congress voted in support of the Bill.

Two members of the Democratic Alliance voted against the Bill.

5.
5.

Conclusion The Committee agreed to the Bill without amendments.

Report to be considered.

3 46 2.
Report by the Select Committee on Trade, Industry, Economic Development, Small Business Development, Tourism, Employment and Labour on the public hearings on the Employment Equity Amendment Bill [B 14B-2020] (sec 75) and the Compensation for Occupational Injuries and Diseases Amendment Bill [B 21B-2020] (sec 75) and on responses from the Department of Employment and Labour thereon, dated 22 March 2022 The Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour (the Committee), having heard oral submissions on the above-mentioned Bills on 22 February 2022 and having received the responses from the Department of Employment and Labour thereon on 8 March 2022, reports as follows: 1.
Introduction The report provides an overview of submissions made by stakeholders on the two Bills and the responses from the Department of Employment and Labour in respect of the issues raised.

1.1.
Background The purpose of the Employment Equity Amendment Bill [B14B-2020] is to amend the Employment Equity Act of 1998, so as to amend definition; to insert certain definitions; to substitute a definition and to delete a definition; to provide for the Minister to identify sectoral numerical targets in order to ensure the equitable representation of suitably qualified people from designated groups; to provide criteria for the Minister to issue certificates; and to provide for matters connected therewith.
The purpose of the Compensation for Occupational Injuries and Diseases Amendment Bill [B 21B-2020] is to amend the Compensation for Occupational Injuries and Diseases Act, 1993, so as to amend, substitute, insert, delete and repeal certain definitions and sections; to provide for matters pertaining to the Board and its members; to provide for the Commissioner to perform certain functions that were previously performed by the Director-General; to further 47 provide for matters pertaining to rehabilitation, re-integration and return to work for occupationally injured and diseased employees; to regulate the use of health care services; to provide for the Commissioner to review pension claims or awards; to provide for administrative penalties; to regulate compliance and enforcement; and to provide for matters connected therewith.
The Committee placed adverts for public comment in newspapers and ran radio adverts to advertise for public comment.

The closing date for written submissions was 22 January 2022.

Adverts were placed in the following publications and in all eleven official languages as follows: 1.

City Press (English) 7.

Free State Sun (Sesotho) 2.

Die Burger (Afrikaans) 8. Business Ink (Setswana) 3.

Thembisile News (Isindebele) 9.

Coal City (Siswati) 4.

Isolezwe (Isixhosa) 10.

Ngoho News (Tshivenda) 5.


Isolezwe (Isizulu) 11.

Bushbackridge News (Xitsonga) 6.

Nthavela (Sepedi) 1.2.


Attendance by Members of the Committee The public hearings were attended by the following Members: Mr. MI Rayi (Chairperson), ANC, Eastern Cape; Mr. MK Mmoiemang, ANC, Northern Cape; Mr. M Dangor, ANC, Gauteng; Ms. ML Mamaregane, ANC, Limpopo; Ms. L Moshodi, ANC, Free State; Ms. HS Boshoff, DA, Mpumalanga; Mr. JJ Londt, DA, Western Cape; and Mr. T Brauteseth, DA, KwaZulu-Natal.

48 1.3.

Submissions The Committee received twelve oral submissions from the following stakeholders: 1.
Businesses Unity South Africa 2.

Banking Association of South Africa 3.

Financial Intermediaries Association of South Africa 4.

Black Business Council for Built Environment 5.

Association for Savings and Investment South Africa / South African Insurance Association 6.

Master Builders South Africa 7.

Congress of South African Trade Unions 8.

Injured Workers Action Group 9.

Construction Alliance South Africa 10.

COMPSOL 11.

South African Civil Engineering Contractors 12.

COIDLINK.

2.
COIDLINK.

2.

SUBMISSIONS ON THE EMPLOYMENT EQUITY AMENDMENT BILL [B 14B- 2020] 2.1. Business Unity South Africa Business Unity South Africa (BUSA), an apex body formed in 2003, is a confederation of business organizations including chambers of commerce and industry, professional associations, corporate associations and unisectoral associations.
BUSA represents the views of its members in a number of national structures and bodies, both statutory and non-statutory, and also represents business interests in the National Economic Development and Labour Council (NEDLAC).

49 In its submission, BUSA acknowledges that the pace of transformation in South Africa has been slow and the importance of ensuring that workplaces are transformed so as to ensure the equitable representation of suitably qualified people from designated groups.
While BUSA acknowledges the above and is firmly in support of this process, which will ensure transformation at all levels of a workplace, it highlights that any measures to do so must be rational and constitutional.

BUSA represented its constituents when the Bill was tabled at NEDLAC for engagement by social partners (8 November 2017) and maintains that although an agreement was reached at NEDLAC in some aspects of the Bill, there were areas of disagreement recorded by Business.
Those areas of disagreement were recorded in the NEDLAC report.

The main contention of BUSA is that the version of the Bill tabled in Parliament is different to the version of the Bill which was engaged on at NEDLAC level and subsequently published in the Government Gazette in September 2018 for public comment.
BUSA notes that the most significant amendment proposed is section 15A, which is being contemplated in order to empower the Minister of Employment and Labour to identify national economic sectors for purposes of the administration of the Act, in order to determine “numerical targets for these sectors”, based on factors which the Minister may determine.

2.1.1.
2.1.1.

Submission on Section 15A of the Bill BUSA maintains that it is essential that all sectors/industries in the country are adequately consulted and that the sector targets should be set with the respective industry bodies who can share meaningful information regarding, amongst others, the composition of the industry, the economic challenges faced in the industry, the state of transformation and the challenges to transformation within the industry.
BUSA further believes that the Act needs to make provision for instances where agreement cannot be reached between the Minister and the relevant sector.

BUSA asserts that the impact of the amendments on foreign organisations must also be factored into the consultations.

The proposed amendments present considerable uncertainty, particularly as some of these organisations may lag in representation of designated persons for justifiable and objective reasons.
The level of complexity from one company to the next is yet another significant factor.

As companies may range from small, single owner businesses through to large, multinational entities, the imposition of “one-size-fits-all” targets on a sector without proper and meaningful consultation will no doubt lead to unintended consequences, such as 50 further capital flight and disinvestment.
The impact of the potential flight of foreign investment, skills and service delivery should be a material concern to Government.

The fact that labour inspectors have the broad powers to determine compliance under section 42 is incomprehensible, given that the result thereof could be the very closure of an organisation and could contribute to a further decline in economic growth and an increase in unemployment levels.
The potential for corruption and abuse of power is also a serious threat in this context.

The position of Business is that section 42(1) (aA) (dealing with assessment of compliance) should be amended to read “whether or not the employer has taken reasonable steps to achieve the applicable sectoral target”.
The amendment to section 42(1)(Aa) as proposed above serves two purposes: • To align the provision with the rest of the provisions in section 42 (which provide for reasonable steps taken by a designated employer with reference to other compliance criteria); and • To mitigate against the numerical targets being construed as creating quotas, as this is expressly prohibited by section 15(3) of the Employment Equity Act.

2.1.2.
2.1.2.

Submission on section 53 of the Bill BUSA maintains that the proposed new subsection 53(6) lists five criteria an employer must satisfy in order for that employer to be issued with a compliance certificate (which certificate will allow it to bid for work with the State).

The constitutional law provision against which these amendments are to be measured is section 217 of the Constitution and deals with procurement.
The setting of targets by the Minister based on unspecified factors, for a variety of sectors, sub-sectors, regions, etc.

does not, in BUSA’s view, satisfy portions of section 217(3).

Section 15A, if passed, may be part of national legislation, but it sets no framework within which the policy is to be implemented.

It simply empowers the Minister to determine targets without reference to any prescribed framework.
As such it will, in BUSA’s view, be unconstitutional for being in conflict with section 217(3) of the Constitution if passed in its present form.
For the compliance certificate (which will allow employers to bid for Government work) to pass constitutional muster and serve a rational purpose, the other considerations in section 217(1) are also important, such as being able to obtain the best possible service at the best possible price – something which should lie at the heart of an efficient, fair, equitable, 51 transparent and cost-effective public procurement exercise.
Giving a Minister or one of his or her officials the power to set targets by decree outside of the legislation promulgated specifically to give effect to section 217(3) without setting a similar legislative framework within which this is to be done, will, in those circumstances, conflict with both sections 217(1) and 217(3) of the Constitution, and not be rescued by the proviso in section 217(2), which of itself needs to comply with section 217(3).
If the numerical targets which are set constitute an absolute barrier or quota, which the withholding of a certificate and with that the opportunity to bid for Government work will do, that would fall foul of section 15(3) of the Act.

The consequences of not meeting the sectoral targets would eliminate organisations from transacting with the State and destroy their revenue lines, resulting in liquidation and job losses.
The same consequence would apply to any company exercising its rights to appeal the findings of the Inspector, should they choose to do so, as they will have no certificate during such appeal period either.

BUSA highlights that the effect of the amendments proposed by the Bill on the requirements for employers to consult with Employment Equity Committees is that the Minister may impose sectoral numerical targets.
These prescribed numerical targets will effectively override the targets contained in a designated employers’ employment equity plan.

However, in terms of section 16, read with section 17, of the current Employment Equity Act, designated employers are legally required to consult with their employees (by way of an employment equity committee) on the content (the targets to be achieved) and implementation of their employment equity plans.
BUSA concludes that if the Employment Equity Act is amended, it will mean that an employer will be bound to use the sectoral targets fixed by the Minister in its employment equity plan, and consultation with employees would be rendered meaningless.

The employer’s hands will be tied, regardless of the input from its employees.

BUSA does not believe that this disempowering consequence should be allowed to stand, given its potentially disruptive effect on workplace harmony and labour relations.
BUSA therefore respectfully submits that to accept the current Bill as it stands will not only undermine the workings of NEDLAC by unravelling agreements reached by social partners, but will also have unintended consequences on businesses and their ability to grow and to create or sustain employment.

2.2.

The Banking Association South Africa 52 The Banking Association South Africa (BASA) is the national association of domestic and international banks operating in South Africa.
It advocates the views of banks on legislation, regulation and social and economic issues that affect the industry.

It advances the interests of the banking industry with its regulators, legislators and stakeholders to make banking sustainable, profitable and better able to contribute to the social and economic development and transformation of the country.
In its submission BASA expressed its support for transformation, indicating that it supports the intentions set out by the Bill to accelerate transformation objectives in all sectors of the economy.
BASA further outlined that its submission must be viewed in the context of the regulatory environment in which banks operate, specifically the Financial Sector Regulation Act of 2017, which states in section 28 that any organ of State must in performing its functions have regard to the implications of its activities on financial sustainability and provide such assistance to the Reserve Bank and the Financial Oversight Committee to maintain and restore financial stability as the Reserve Bank and the Committee may request.
BASA’s submission proceeded to provide information on how certain provisions of the Bill may impact on financial sustainability of its members and to make proposals for changes to the Bill.

2.2.1.

Financial stability Some of BASA’s members have been designated as Systemically Important Financial Institutions by the Governor of the South African Reserve Bank in consultation with the Financial Stability Oversight Committee in terms of the Financial Sector Regulation Act, 2017.
The Financial Sector Regulation Act already makes provision for fines and the matters the authority must have regard to in determining fines.

Fines relating to the targets will most likely negatively affect members’ Environmental Social and Governance (ESG) scores.

ESG compliance has become a major issue for international and local investors providing capital for banks.
In order to maintain financial stability, in so far as the fines and the factors to be taken into consideration in determining fines, as the current provision of the Bill is in conflict with the Financial Sector Regulation Act provisions which should take precedence.

2.2.2.
2.2.2.

Section 15A of the Bill 53 In terms of the Bill, Section 15A proposes that the Minister may, by notice in the Gazette, identify national economic sectors for the purposes of this Act, having regard to any relevant code contained in the Standard Industrial Classification of all Economic Activities published by Statistics South Africa.

Section 15A (3) gives all the powers to the Minister to set targets in consultation with the National Minimum Wage Commission and not the relevant sector.
BASA highlights that this is concerning as it is not in alignment with previous NEDLAC agreements discussed by business and the social partners.

BASA therefore recommends that the Minister revert to the initial agreements negotiated at NEDLAC, namely that consultations will take place with the relevant sector bodies when setting sector targets.

The provisions of the Financial Sector Regulation Act, 2017, and financial stability must also be taken into account when setting these targets and penalties.
Furthermore, in terms of section 15A (4) notice issued in terms of subsection (3) sets different numerical targets for different occupational levels, sub-sectors or regions within a sector or on the basis of any other relevant factor.

In this regard, BASA is of the view that sector targets should be set nationally and not differentiated by region.

If regional targets apply, then businesses with a national footprint will have to comply with multiple sets of targets.
This will result in a considerable burden in terms of restructuring, managing and monitoring the compliance requirements for businesses that operate nationally.

2.2.3.

Concerns BASA expressed that the unintended consequence of hard-coding targets with penalties include the following: • The issuing of bonds to local or international investors might become difficult in the event a bank has failed to meet the targets within the five-year period, and has a regulatory finding against it.
This could impact the raising of capital (and therefore growth) within the country.

The same would apply to investments made by asset managers or individuals; • One of the effects of the targets being hard coded is that it will make it very difficult to reach and comply with the intended goals in a five-year period.

The unintended consequences are the biggest risk for the banks.
The main concern is how the banks will be perceived by asset managers that have to invest capital in the banks; 54 • Retrenchments of employees in crucial sectors in order to fit into the targets may unintendedly lead to economic harm and/or systematic risk; • The impact on the availability of specialised skills within the sector: in the event the targets are hard coded, and where there is a shortage of skills within SA, we may further encourage emigration and exit of skills and capital from the country.
This could introduce systemic risk and potentially place parts of the fiscal system at risk; • Automation within the sector will result in reduced headcount at the lower occupational levels and this needs to be accounted for, failing which members of BASA will be unable to meet the targets.
Given the above-mentioned concerns, BASA recommends the following: • That the process to set targets should be consultative, transparent and use the best available and up-to-date evidence; • That the Minister should consult with individual sectors before setting targets to ensure that targets are sector specific; • That timelines to comply with targets should be extended to a minimum of 10 years instead of five years, to allow for adequate time to transition and avoid unintended consequences.

2.3.
2.3.

Financial Intermediaries Association of South Africa The Financial Intermediaries Association of South Africa (FIA) is a non-profit trade organisation, registered in terms of the Companies Act, and represents the interests of the advisory businesses in the financial services sector.

The FIA has 1 700 member businesses and provides financial advice and risk management services to consumers of financial products.
The FIA submitted that it is fully committed to transformation, and acknowledges that there is more that can be done in the sector, in particular at senior management level.

Whilst the FIA is in support of the proposed amendments to the Bill it urges Parliament to consider the concerns raised in its submission which relate to the following: • Consultation on targets; • Need for sub-sector targets; • Compliance: Impact on regulated entities; • Fines and penalties; 55 • Constitutionality.

2.3.1.
2.3.1.

Consultation on targets It is the FIA’s understanding that the Department of Employment and Labour has consulted with some sectors on the setting of targets in anticipation of the Bill being passed.

The FIA submits that to date, it has not been consulted on the setting targets under the Bill.

It is of the view that any consultation thus far does not meet the consultation requirement set in section 15A (2) of the Bill, as such consultation may only happen when the Bill is promulgated.
The FIA therefore does not agree to any targets set outside of the required consultative process.

Based on member knowledge and expertise, the FIA asserts that it can add significant value to the consultation with the Department of Employment and Labour on the setting of sub-sector targets for intermediaries.
The following aspects are unique to intermediaries and will require specific consideration: • The time period to become a fully-fledged advisory business in South Africa; • Mandatory qualifications and accreditation, including specific regulatory exams; • Additional skills required to ensure the success of businesses; • Input regarding the complex regulatory landscape; • An understanding of the various earning models such as fees and commission; • The barriers to enter, namely red tape and the high start-up costs for advisory businesses; and • Levels of literacy in the consumer market.
The FIA asserted that it is committed to the new social consensus on eradicating poverty, inequality and creating jobs.

2.3.2.

Compliance: Impact on regulated entities The FIA submits that compliance ought to be considered in terms of section 42 (general compliance) and section 53 (certificate of compliance) of the Bill, read with the Financial Sector Regulation Act.
Section 42(1) of the Bill proposes that the Director-General takes certain factors into account in determining whether a designated employer is implementing employment equity in compliance with the Employment Equity Act.

Given, however, that compliance will not be obtained in the short term, the FIA proposes that instead of only taking 56 compliance into account, consideration should be given to reasonable steps taken towards compliance.
The FIA maintains that section 53 of the Bill has the effect that the Minister may only issue a certification of compliance if the Minister is satisfied, inter alia, that: (i) the employer has complied with a numerical target set out in terms of section 15(A); or (ii) in respect of any target with which the employer has not complied, the employer has raised a reasonable ground to justify its failure to comply as contemplated in section 42(4).
The FIA maintains that the proposed amendments contained in the Bill has the effect that State contracts may only be issued to employers who have been certified as being in compliance with their obligations under the Employment Equity Act (including targets set out in section 15(A) of the Act.

In the financial services industry, however, this has the ability to severely limit the licence of the financial services provider.
The FIA highlights, that in addition to the Act, financial services providers are also required to comply with other legislation which also contains transformation imperatives.
In this regard, there is a potential conflict if further sector targets are set by different Regulators and accordingly, the FIA proposes that where targets across different pieces of legislation do not align, the Department of Employment and Labour should engage with the relevant Regulators, specifically on sections 28 and 78 of the Financial Sector Regulation Act.
Furthermore, section 28 of the Employment Equity Act provides that an organ of State (such as the Minister) must in performing its functions (such as identifying economic sectors, prescribing criteria for the identification of sectors and setting numerical targets for the purposes of the Bill) ‘have regard’ to the implications of its activities on financial stability.
Section 78 further provides that the Minister, in performing his/her regulatory or supervisory function in relation to employment and labour at financial institutions must, to the extent practicable, consult with financial sector Regulators and the Reserve Bank on the performance of that function.

2.3.3.

Fines and penalties The FIA submitted that the fines negotiated at NEDLAC were aspirational and not hard coded.
Furthermore, it does not believe that the current provisions on fines which are levied for non- compliance with other sections of the Act, should apply to non-compliance with Section 15A 57 of the Bill.

The FIA recommends that the Minister consult with relevant sectors on the appropriate fines and penalties at the time of consultation on the sub-sector targets.

The FIA is therefore concerned that excessive punitive fines will lead to regulatory failure.

2.3.4.
2.3.4.

Constitutionality The FIA contends that current targets in hard coded form with the current fines and penalties contained in the Bill amount to “quotas”, as non-compliance can impact the licences of financial service providers.
The Constitutional Court in South African Police Service V Solidarity obo Barnard 2014 (6) SA 123 (CC) has emphasized that: • Suitably qualified individuals must be beneficiaries of affirmative action under the Employment Equity Act; and Measures directed at affirmative action may include preferential treatment and numerical goals but must exclude “quotas”.

2.4.
2.4.

Black Business Council in the Built Environment The Black Business Council in the Built Environment (BBCBE), affiliated to the Black Business Council, is the apex organisation of black construction and professional organisations in the country.
One of its key objectives is to engage government and other statutory bodies to influence the drafting and implementation of appropriate legislation in order to create an enabling environment for the black constituency in the building and construction industry.

The BBCBE member organisations represent the interest of small, medium and micro enterprises (SMMEs) in the industry and a significant percentage of its membership is women and youth owned.
The underlying membership of these organisations is approximately 5 000 companies of members who ply their trade in the built environment industry value chain.

In terms of the Bill the BBCBE fully supports the process to amend the Employment Equity Act, noting that construction sector targets must be aligned with the employment equity targets as set out and agreed upon by industry players in the current Construction Sector Charter codes.
Due to concerns regarding government’s capacity to police the full implementation of the Act and its Regulations and in the interest of ensuring that what companies report to the Department of Employment and Labour is a true reflection of the reality of their operations, the BBCBE 58 proposes that the Act should make provision for the private sector to partner with the Department to increase its inspectorate capacity.

2.5.
2.5.

Association for Savings and Investment and South African Insurance Association The Association for Savings and Investment (ASISA) and the South African Insurance Association (SAIA) made a joint submission on the Employment Equity Amendment Bill.

ASISA is a non-profit industry body which represents 119 members of the savings, investment and insurance industry.
It collectively represents the interests of South Africa’s asset managers, collective investment scheme management companies, linked investment service providers, multi-managers and life insurance companies.

SAIA, represents the non-life insurance industry, previously called short-term insurance industry.

SAIA’s current 56 members include primary insurers, cell captives, captives and reinsurers and represents approximately 90 per cent of the market in terms of premium income.

2.5.1.
2.5.1.

Transformation and targets ASISA and SAIA support the objects and purpose of the Bill and acknowledge the need for the equitable representation of suitably qualified persons from designated groups at all occupational levels of the workforce.

ASISA and SAIA recognise that this is an essential requirement to gain the trust of future clients and for the sustainability of the economy and the financial sector.
To this end, ASISA and SAIA (together with BASA) have already agreed to the targets proposed in the Bill with the Department of Employment and Labour.

Such agreement was on the assumption that: • Sub-sectors would be recognised; • Targets would not be hard-coded; and • Fines would be adjusted as a result of (amongst other things) the introduction of targets.

ASISA and SAIA assert that targets were also agreed at the time when the full extent of the Covid-19 pandemic was unknown.
In this regard, the financial services sector was particularly hard hit by an increase in bad debt, excess mortality and a withdrawal of funds by investors in order to survive.

It has brought about the need for automation and online services which changes employment requirements.

59 The financial services sector consists of sub-sectors that vary substantially in their make-up, dynamics and requirements.
Different sub-sectors within the industry represent different interests and are at different levels of compliance.

ASISA and SAIA assert that it is therefore crucial that proper engagement on sub-sectors and sub-sector targets take place to ensure that a one-size-fits-all approach is not adopted, which cannot address the diverse nature of the industry.

In respect of sub-sector and regional targets, section 15(A)(3) of the Bill provides for the setting of sub-sector and regional targets.
Provinces like KwaZulu-Natal and the Western Cape require that regional demographics be taken into account when targets are set.

ASISA and SAIA maintain that an unintended consequence of imposing national targets on regions would be for regional offices to close and move to provinces where national targets are attainable.

Job losses could follow as a result.

It is crucial for regional demographics to be taken into account when targets are set with role players and with the input of provincial government.
National government cannot usurp the role of provincial government.

2.5.2.

Compliance It was asserted that compliance has to be considered in respect of: • General compliance in terms of section 42 of the Bill; and • A certificate of compliance in terms of section 53 of the Bill.

ASISA and SAIA maintain that the financial sector is highly regulated with multiple licences and multiple capital requirements.
As more funds and attention will be moved to address compliance on the hard-coded requirement, other sections of broad-based transformation will suffer.

If the majority of companies fail to comply with the targets set out in the Bill, it would be perceived by the public as a governance failure.

Recognition must be given for the achievement of transformation through a combination of other factors to determine an entity’s compliance level.
Compliance has always been measured in aggregate rather than compulsory performance on every element.

There needs to be clear assessment guidelines in terms of compliance and a robust appeal process to avoid systemic risk to the industry.

Any determination of what would constitute compliance will need to take certain industry specific events into consideration.
60 ASISA and SAIA are of the view that the current wording of the Bill (together with the impact of non-compliance with such targets) suggests that these targets are in fact quotas and are too strict for the non-compliance consequences.

To avoid targets being akin to quotas, justifiable reasons for non-compliance should be set out in the Bill based on the draft 2018 Regulations.

ASISA and SAIA therefore maintain that a one-size-fits-all target for an entire sector would be impossible and prejudicial.
Specific scarce skills are required in different sub-sectors which would require “suitably qualified persons” consideration requiring individualized numerical targets.

If the targets are rigid, the timeframes in which each sector needs to achieve them needs to be extended.

ASISA and SAIA therefore maintain that it is not mathematically possible to achieve the target in each race, gender and occupational band at a fixed future measurement point.
A sudden resignation of a few individuals shortly before a measurement date may jeopardise compliance.

The shortage of suitably skilled employees may imperil black owned small businesses who are highly concerned that their employees will be enticed by companies with deeper pockets.

2.5.3.

Skills shortage The financial sector through its various sub-sectors require that many of its positions be filled with highly qualified and experienced technical skills – often a regulatory requirement.
Unfortunately, there are not enough of these skills coming through the university system to adequately meet demographics as per the Economically Active Population.

In the insurance industry in particular, reporting requirements are complex and the services of chartered accountants and actuaries are required.

ASISA and SAIA maintain that there are simply not enough qualified African skills available.
Therefore, while individual companies may achieve their demographic targets due to the shortage of African skills, this is often achieved at the expense of another company that has invested in transformation but whose African employees are in high demand to meet targets.

2.5.4.
2.5.4.

Fines in Schedule 1 of the Act ASISA and SAIA note that fines in Schedule 1 were negotiated at NEDLAC when targets were not hard coded but were aspirational and maintain that the fines are therefore not relevant or realistic in the context of the current proposed sector and subsector targets where targets are 61 unilaterally imposed.

The fines are penal and equivalent to Competition Commission fines and disproportionate to failure to meet transformation targets.
The nature of the targets can lead to multi-year fines.

The quantum of fines will impact capital adequacy reserves and lead to a systemic risk as businesses may fail as a result.

This may result in policy holders not having their claims honoured or reduce clients’ cover and investment growth.

High fines will impact consumer and investment confidence which could result in a withdrawal of business.
Due to its fiduciary role, ASISA and SAIA members’ turnover consists of its clients’ money and capital adequacy reserves, not only of its own profits which it holds on their behalf.

Accordingly, turnover as it applies to other businesses not in the financial industry, cannot be equated to turnover as it relates to ASISA’s and SAIA’s members.
If fines are calculated on turnover (as opposed to profit), it essentially has the effect that a fine on 10 per cent of turnover could often be in excess net profit reducing capital adequacy.

Therefore, any fines based on turnover (even if only 1 per cent) will have a significant impact on the stability of a financial services provider, which will in turn lead to systemic risk by depleting the solvency capital.

2.5.5.
2.5.5.

Other applicable legislation The financial sector performs critical custodian and distributive functions in respect of resources within the economy.

It is essential that the skills, knowledge and experience of its labour force is retained and increased.

A sound financial sector underpins economic growth, and the development and transformation of all sectors of the economy.
Inefficiency in the financial sector results in detrimental consequences for growth, employment, and therefore transformation, in the economy as a whole.

The Minister, in performing his functions in terms of section 15A of the Employment Equity Act, as amended, is to act in accordance with all financial sector legislation, specifically sections 28 and 78 of the Financial Sector Regulation Act.
Section 28 provides that an organ of state (such as the Minister) must in performing its functions (such as identifying economic sectors, prescribing criteria for the identification of sectors and setting numerical targets for the purposes of the Employment Equity Act) ‘have regard’ to the implications of his activities on financial stability.
Section 78 further provides that the Minister, in performing his/her regulatory or supervisory function in relation to 62 employment and labour at financial institutions, must, to the extent practicable, consult with the financial sector regulators and the Reserve Bank on the performance of that function.

2.5.6.

Constitutionality considerations South African Police Service V Solidarity obo Barnard 2014 (6) SA 123 (CC) [41] Section 15 describes the permissible character of affirmative action measures.
They must be designed to ensure that “suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupation categories and levels”.

I pause to underline the requirement that beneficiaries of affirmative action must be equal to the task at hand.

They must be suitably qualified people in order not to sacrifice efficiency and competence at the altar of remedial employment.
The Act sets itself against the hurtful insinuation that affirmative action measures are a refuge for the mediocre or incompetent.

Plainly, a core object of equity at the workplace is to employ and retain people who not only enhance diversity but who are also competent and effective in delivering goods and services to the public.
In the context of ASISA and SAIA’s members, the Constitutional Court’s emphasis of the fact that only suitably qualified individuals must be the beneficiaries of Affirmative Action, creates unique challenges, given the shortage of African actuaries, accountants, asset managers, risk underwriters and other qualified individuals.

The amendments must take this reality into account.
South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC) [42] A designated employer is required to implement several measures in pursuit of affirmative action.

They must identify and eliminate employment barriers, further diversify the workforce “based on equal dignity and respect of all people” and “retain and develop people” as well as “implement appropriate training measures”.
Section 15(3) contains a vital proviso that the measures directed at affirmative action may include preferential treatment and numerical goals but must exclude “quotas”.

Curiously, the statute does not furnish a definition of “quotas”.

This not being an appropriate case, it would be unwise to give meaning to the term.

Let it suffice to observe that section 15(4) sets the tone for the flexibility and inclusiveness required to advance employment equity.
It makes it quite clear that a designated employer may not adopt an Employment Equity Policy or practice that would establish an absolute 63 barrier to the future or continued employment or promotion of people who are not from designated groups.

From this ASISA and SAIA maintain that the impermissibility of imposing quotas is an important factor which should inform the formulation of the Bill.
The proposed amendments by ASISA and SAIA to the Bill are captured further in the report under Departmental responses.

2.6.

Master Builders South Africa Master Builders South Africa (MBSA) is a federation of registered employer organisations representing contractors and employers in the construction industry and regulated in terms of section 107 of the Labour Relations Act, 1995.
It has eight Master Builder Associations and two affiliate organisations and represents more than 4 000 contractors and employers in the industry.

The MBSA and its members are in agreement that equitable representation of suitably qualified people from designated groups in the economy is central to achieving sustainable and meaningful socio-economic development.
However, the MBSA submitted that the Bill in its current form will have a devastating and negative effect on the building industry and may unintendedly be counter-productive to achieving the transformation objectives it aims to attain.

2.6.1.
2.6.1.

Amendment to section 15(A) – Determination of sectoral numerical targets The MBSA noted that this section empowers the Minister of Employment and Labour to set sectoral numerical targets after consultation by a notice in the Government Gazette but is silent on the criteria for identifying and setting sectoral numerical targets.
The section is also silent on the need for consensus between the Minister and economic sectors in the determination of numerical targets, which demonstrates adequate consultation and is crucial to setting and achievement of any targets set.
The MBSA maintains that it is deeply concerned that neither the criteria for setting targets nor the need for consensus have been included in section 15(A) and proposes that section 15A (2) should include a requirement for the Minister to determine a criterion for identifying and setting sectoral numerical targets jointly with economic sectors.

2.6.2.
2.6.2.

Amendment to section 53: State Contracts 64 The MBSA noted that this section allows for an employer to raise a reasonable ground to justify its failure to comply.

However, the Bill is silent on the definition of “acceptable” reasonable grounds to justify a failure to comply, and that this may be subject to abuse.

It proposes clear definitions of acceptable reasonable grounds to justify failure to comply in the Act.
The MBSA further proposes that a compliance period of no less than the minimum required for completion of an occupational qualification dominant for each sector, should be included in the definition of acceptable reasonable grounds for failure to qualify.

The MBSA asserts that tabling the Bill in Parliament without clearly prescribed criterion for identifying and setting sectoral numerical targets is premature.
Due consideration should be given to the need for consensus between in the Minister and economic sectors in the determination of targets.

Clear definitions of acceptable reasonable grounds to justify failure to comply should be included in the Act.

2.7.

Congress of South African Trade Unions (COSATU) COSATU welcomes and supports the Bill and participated in engagements at NEDLAC in respect of this Bill in 2018/19.
It believes that it is a critical amendment Bill that will strengthen government to achieve the progressive targets of the Employment Equity Act.

However, COSATU’s support for the Bill is dependent on the following provisions, namely: 1.

Linkages to National Minimum Wage Commission – This is important to ensure synergy and to hold employers accountable for their compliance with the National Minimum Wage Act.

2.
2.

Disabilities – The expansion of the definition of disabilities to include intellectual and sensory is correct and long overdue.

3.

Sectoral targets – Empowerment of the Minister to set economic sectoral targets is critical as sectors are not uniform.

Some have made progress in achieving targets whilst other remain notorious for their failure to do so.

Provisions allowing the Minister to specify targets according to occupational, regional and sub-regional needs is further welcomed.
Particular occupational strands often remain laggards, such as low-skilled jobs or managerial positions.

It is therefore important for targets to take into account regional and sub-regional demographic diversity.

South Africa is a diverse nation and this is often linked to geography.

COSATU is of the view that a blanket, uniform approach does not work and ‘one-size-fits-all’ targets can cause social strife.
Therefore, provisions requiring the 65 Minister to engage with the Employment Equity Commission when setting targets will help ensure targets are thoroughly considered beforehand.

4.

Employer consultation with trade unions – Provisions requiring employers to consult with trade unions are welcomed and will help strengthen collective bargaining and encourage labour market stability.

5.
5.

Annual reports – COSATU welcomes the provisions requiring employers to report on matters related to collective bargaining, compliance with the National Minimum Wage Act and its provisions as well as sectoral determinations.

This will help support compliance with these progressive and statutory obligations.

6.

Labour inspectors – COSATU supports the provisions empowering labour inspectors to enforce compliance by the employers with the Employment Equity Act.
These are critical to ensure that inspectors are fully empowered and that recalcitrant employers are held accountable.

7.

Compliance certificates – COSATU welcomes the provisions which state that government contracts may only be issued to businesses in compliance of the Act.

The need for the Department of Employment and Labour and National Treasury to operationalise this is a long overdue provision.
COSATU therefore supports the Bill, which it believes is progressive and will assist in seeking to address the legacies of discrimination.

It is fair, rational and empowers the State to deal with obstinate employers.

Equally, it allows for regional diversity, which is a matter requiring sensitivity and links State tender requirements to compliance with labour laws and good labour practices.

COSATU therefore urges Parliament to prioritise and pass the Bill as soon as possible.

2.8.
2.8.

Construction Alliance South Africa Construction Alliance South Africa (CASA) is an umbrella body of the construction industry made up of 32 of the sector’s professional organisations, contractor organisations, supplier organisations and other bodies as an association of Associations across the sector value chain.
It is not the voice of the entire construction industry which is why organisations such as Master Builders South Africa, South African Civil Engineering Council and Black Business Council for Built Environment will be making separate submissions to the Committee.

66 CASA engaged with the Bill through its various stages of its public participation, noting that to date six formal engagements have taken place.
CASA advised the Department of Employment and Labour at the early stages of public consultation about the lack of alignment between various organisations and that a one-size-fits-all approach is ill considered.

The basis upon which the Department hoped to proceed with target setting, using broad-based black economic empowerment (BBBEE) sector codes is flawed.

The context and application of BBBEE codes are markedly differently from the Department to use management targets contained in sector codes.
Therefore, the identified contradictions with existing legislation as well as the systemic constraints the industry faces should be considered.

2.8.1.

Systemic constraints The systemic constraints are noted as follows: • Legislative requirements for registered professionals in senior and top management positions; • Business sustainability - sector largely knowledge-based.
Majority of management team directly involved in operational activities of business and so held liable for compliance; • Registration requirements and career path to management; • Statistics on Feeder Channels from Statutory Councils of Professionals; • Feeder to University studies and professional registration.

2.8.2.

Competency based legislative requirements The Occupational Health and Safety Act and Construction Regulations require that “competent persons ref.
Qualifications Framework Act 2000” based on required qualifications and training should be responsible for planning, design, administration and management of construction- related processes.
Construction Manager, Principal Agent, Principal Engineer roles require that such persons be registered with Statutory Councils, the Engineering Council of South Africa (ECSA), the South African Council for Project and Construction Management Professions (SACPCMP) and the South African Council for the Architectural Profession (SACAP).

There exists a public sector risk and liability management requirement in all contracts.
Furthermore, insurance companies do not cover practitioners who are not registered professionally.

The 67 career progression timelines for middle, senior and top management roles require a minimum of 4-5 years of study, varying minimum entry requirements to study.
According to the 2020 Published Professional Registration Figures for ECSA and the SACPCMP: • A total of 19 523 registered as Professional Engineers, 94 per cent male, 6 per cent female and 18 per cent black; • A total of 6 400 registered for Technologists, 93 per cent male, 8 per cent female and 40 per cent black; • A total of 10 249 registered as Candidate Professional Engineers, 77 per cent male, 23 per cent female and 58 per cent black; • A total of 5 849 Candidate Technologists registered, 76 per cent male, 24 per cent female and 86 per cent black.
In respect of Construction Project Managers: • A total of 910 registered, 98 per cent male, 2 per cent female and 26 per cent black; • A total of 684 registered as Candidate Construction Project Managers, 83 per cent male, 17 per cent female and 67 per cent black.

2.8.3.

Matric output of learners CASA asserts that the current occupants at top management levels would have relied on candidates who matriculated from 2000 – 2005.
Numerous structural deficiencies in the basic education system limit the throughput to produce quality potential candidates for the industry.

The industry is not necessarily the first choice for high performing learners, and there is a small pool available for medicine, finance, pure sciences and engineering.
It was noted that 78 per cent of Grade 4 learners cannot read for meaning, and there is a need for 44 000 capable teachers per year by 2025 to fill the gap left by retirement of the current crop of teachers in the next 10 years.

2.8.4.

Legal contradictions CASA asserts that there will be a legislative conflict if the Employment Equity Amendment Bill is implemented, as it will be afforded greater impact than the procurement legislation.
68 Section 63 of Employment Equity Amendment Bill states that it enjoys preference to any other legislation other than the Constitution.

Other areas would be in conflict with BBBEE legislation.

Section 217 of the Constitution allows for procurement to be utilised by the State for redress of past imbalances.

Target setting on an irrational and unreasonable basis that seeks to absolutely limit public procurement opportunities may be considered unfair and may be unconstitutional.

2.9.
2.9.

South African Civil Engineering Contractors South African Civil Engineering Contractors (SAFCEC) is a registered employer body for contractors engaged in civil engineering construction, it is active in all regions in South Africa and represents over 350 companies, jointly representing more than 50 per cent of employees in the industry.

2.9.1.
2.9.1.

SAFCEC Engagement on Employment Equity Amendment Bill SAFCEC outlined its engagement on the Bill dating back from November 2018 to present, noting its correspondence to the Department of Employment and Labour, the Commission of Employment Equity as well as the Portfolio Committee on Employment and Labour.
This correspondence includes a substantive submission on data, statistics, research and highlighting the issues of concern, including requests for substantive engagement, particularly to the Department with no response.

2.9.2.
2.9.2.

Critical legal considerations Race based quotas as opposed to racial targets SAFCEC notes that section 15 of the Bill describes affirmative action measures as including measures to ensure the equitable representation of suitably qualified people from designated groups in all occupational levels in the workforce.

Section 15(3) provides that such measures include preferential treatment and numerical goals, but exclude quotas.
Goals [or targets] represent a preconceived target or objective of what is rationally capable of being achieved in the light of the expected impact of external factors.

Quotas, on the other hand, function as an end in themselves by providing a ‘target’ that is non-negotiable, fixed and removed from the 69 reality of factors that determine the achievability of a true goal.

Accordingly, (in the context of transformation), while ‘goals’ represent objectives, a quota functions as a measure in itself.
2.9.3 Practical considerations – Compliance SAFCEC maintains that compliance certificates potentially barring companies to bid for State work is the incorrect and counterproductive approach.

In respect of enforcement: • The current Act has significant powers assigned to enforce EE Compliance.

(e.g.

significant fines levied via CEE).

• Compliance certification is seen as another measure to enforce compliance, particularly in our industry.
All industries should be treated the same as far as impact is concerned.

SAFCEC notes that the combined effect of both fines and denying certificates are unreasonable and give rise to the following questions: • How will international competitors in industry be treated?

• What are the implications for black-owned companies that do not currently submit Employment Equity Plans?

The implementation and actions of an inspectorate to enforce compliance must be defined and guided by the Act.
SAFCEC notes significant concerns which relate to the power assigned to inspectors.

2.9.4.

Impact of the Bill on industry SAFCEC maintains that strong growth in industry required to enter employment cycle is needed to meaningfully impact employment equity, and therefore job creation through infrastructure investment must take priority.
Poorly conceived and implemented employment equity legislation can severely damage this fragile industry denying the country a national asset and skill set which has been defined as critical.

Ongoing legal processes absorb resources and is counterproductive.

It creates a fertile breeding ground for potential bribery within a powerful inspectorate holding sway over company survival.

The ease of doing business decreases, which is in conflict with 2022 State-of-the-Nation Address.
As a result, employment costs escalate as 70 employers avoid employment and employ the minimum number of employees.

There is a further skills flight of people needed as the mentors and drivers of change.

2.9.5.

Proposals SAFCEC maintains that a comprehensive legal review is needed as well as well funded, joint research and policy support programmes to plan, track and evaluate employment equity in the industry.
There is a need to develop, agree and implement regulations, including the measurement of progression of potential incumbents as they progress from secondary to tertiary education and onward toward registration and/or the assumption of senior roles.

3.

SUBMISSIONS ON THE COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES AMENDMENT BILL [B 21-2020] 3.1. Business Unity South Africa 3.1.1.
Definitions The Bill proposes that the definition of accident should be amended and read as follows: an accident or occurrence arising out of or in the course of an employee’s employment resulting in personal injury, illness or death of an employee.

BUSA maintains that “disease” is not defined by the Act, but “occupational disease” is defined.
BUSA therefore proposes that in order to ensure that there is certainty as to what diseases are referred to in the definition of “accident” that the word “occupational” should be inserted immediately before the word “disease”.

3.1.2.

Functions of the Director-General BUSA highlights that one of the proposed amendments is to transfer certain functions currently performed by the Director-General of the Department of Employment and Labour to the Commissioner.
During the NEDLAC engagement process, Business requested that Government carefully reviews the Compensation of Occupational Injuries and Diseases Act 71 together with the Bill to ensure that the sections relevant to the functions of the Director- General and the Commissioner are updated accurately to avoid contradictions and anomalies.
BUSA notes that it appears that there are still some inaccuracies in this regard, for example section 4 of the Act has not been updated to remove the functions of the Director-General whereas those functions have been moved to the Commissioner.

3.1.3.

Section 69: Amendment to Schedule 3 BUSA does not support the proposed amendment to section 69 in so far as the Bill proposes that the period for public comment to any changes proposed to Schedule 3 should be reduced from 60 days to 30 days.
Furthermore, it was agreed at NEDLAC (as captured in the NEDLAC report) that the 60-day period would be retained.

BUSA maintains that despite this agreement, the BILL published in the Government Gazette following NEDLAC consultations proposes a 30-day period for public comment.

This should be rectified in line with the NEDLAC agreement.

3.1.4.

Fines and penalties During the NEDLAC process, the most significant area of disagreement concerned the proposed amendments to fines and penalties.
Business is of the view that the following principles, some of which are enshrined in the Constitution, should apply in so far as the imposition of fines and penalties are concerned: • Any fine/penalty must be an effective deterrent.

• Any fine/penalty must be proportional to the offence.

• Preferably, any prescribed fine/penalty should be a defined amount (not a percentage of an unknown amount).
• Any fine/penalty should have a “maximum of up to” or a fine of “not more than” in that this will provide the authority imposing any fine/penalty to exercise discretion (taking into account the particular circumstances of each case) on the value of the fine/penalty to be imposed.

In other words, a fine/penalty should not be prescribing a fixed rate.

72 • Penalties should only be imposed by a court of law (if an employer is found guilty of an offence).

3.1.5.
3.1.5.

Section 39: Notice of accident to Commissioner The Bill proposes that section 39(6) of the Compensation of Occupational Injuries and Diseases Act should be amended to read as follows: An employer, excluding an employer referred to in section 84(1)(a)(i) and (ii) who fails to comply with subsection (1) shall be liable to a penalty of 10% of the declared annual earnings of that particular year.
According to the above, a penalty at a fixed rate of 10 per cent will be imposed if an employer fails to report an accident to the Commissioner within seven days after having received notice of an accident or having learned in some or other way that an employee has met with an accident.

BUSA does not agree to the penalty being fixed at 10 per cent of an employer’s declared annual earnings.

This is disproportionate to the harm caused by a failure to report, regardless of the reason.
Therefore, fixing the amount in this manner is a deterrent to employment and is irrational.

Any penalty imposed in terms of section 39(6) should only be imposed if an employer is found guilty of an offence (by a competent court of law) and that the penalty imposed should be rephrased as a maximum, namely “up to a maximum of 10 per cent”.

3.1.6.
3.1.6.

Section 47(3)(c): Compensation for temporary or partial disablement The Bill proposes that section 47(3)(c) of the Compensation of Occupational Injuries and Diseases Act should be amended to read as follows: An employer who fails to comply with paragraph (a) shall be liable to a penalty equal to double the full amount of three (3) months compensation plus interest.
According to the above, a penalty of double the full amount of three months’ compensation (plus interest) will be imposed if an employer fails to pay an employee compensation for the first 3 months from the date of the accident.

73 BUSA does not agree to the proposed amendment.

BUSA is of the view that any penalty imposed in terms of section 47(3)(c) should only be imposed if an employer is found guilty of an offence (by a competent court of law).
The amendment should read as follows: An employer who fails to comply with paragraph (a) shall, if found guilty of an offence, be liable to a penalty of not more than double the compensation payable for a three (3) month period.

3.1.7 Section 72(3): Conveyance of injured employee The Bill proposes that section 72(3) be amended to read as follows: Any employer who fails to comply with subsection (1) shall be liable to a fine equal to the full cost of conveyance.
BUSA proposes that section 72(3) should rather read as follows: Any employer who fails to comply with subsection (1) may be liable to a maximum fine equal to the full cost of conveyance.

BUSA represents the Business constituency at NEDLAC and maintains that on 5 July 2017, the Department of Labour tabled the Amendment Bill at NEDLAC for a Task Team to deliberate thereon.
The NEDLAC Task Team concluded its deliberations on the Amendment Bill on 19 April 2018 and subsequent thereto, the NEDLAC Report was signed by social partners in May 2018.
BUSA notes the following agreements that were reached by the NEDLAC Task Team, emphasising the need to abide thereby: • The Amendment Bill incorporating public comments should be submitted to the Department of Planning, Monitoring and Evaluation to undertake a SEIAS and assess the cost implications (in particular with reference to the cost of implications for employers).

3.2.
3.2.

Black Business Council in the Built Environment (BBCBE) The BBCBE supports the amendments to the Bill, which are written in good context with respect to improvements on occupational diseases, rehabilitation, inspector’s powers and involvement, and the expansion/extension of time frames to finalize administrative work.

The 74 definition of “dependent” has been updated to suit the South African context.
However, in broadening the context and with our migratory workforce in mind, it will create challenges for the insurance underwriters and legal aids on one who is most dependent, most relevant, or most bound to the person who was injured/passed away and how to fairly distribute the policy outcomes.

BBCBE would like to see the definition to consider the broader legal context.
In terms of Section 18: Amendment for the Commissioner to have the power to transfer funds to the Public Investment Corporation without the Director-General’s involvement therein.

The BBCBE is of the belief that the Director-General of the Department of Employment and Labour should still play a role in the decision and take accountability for investment of the funds.
The licence provided to Federated Employers Mutual Assurance (FEM) to conduct business on behalf of the Commission in the construction sector must be advertised for alternative and empowered players in the market to have an opportunity to tender for it.

The BBCBE maintains that provision must be made for other insurance providers, particularly black owned businesses to be allowed to compete for this opportunity.
BBCBE asserts that it has become an administrative nightmare and costly for companies (small businesses in particular) to secure letters of good standing.

Companies are charged exorbitantly to secure it and in some instances upon renewal they are subjected to unending audit processes.

This simply means companies that depend on public sector projects are unable to tender for such opportunities.

3.3.

COSATU COSATU welcomes and strongly supports the Bill.
It believes it is a critical Bill that will strengthen the protection of workers from injury on duty and increase relief and rehabilitation for those injured.

Certain passages of the Bill need to be strengthened and there is a need for government to ensure the Bill’s speedy enactment and implementation.

There is further a need for employers to embrace and implement the provisions in the Bill, and to educate and empower workers.

There is also a need to capacitate and modernise the Compensation Fund.
COSATU noted that its areas of support in respect of the Bill were as follows: 75 1.

Compensation – COSATU welcomes the inclusion of all medical costs since most workers, especially industrial and at risk workers, do not have medical aid.

Medical aids frequently exclude significant costs from coverage and the provisions in the Bill will assist many workers with unforeseen and often unaffordable costs at a moment of distress or the loss of a bread winner for a family.

2.
2.

Dependents – COSATU supports the expanded definition of dependents to include life partners, spouses under different marital regimes and live-in partners.

As well as children fully and partially dependent adult children as well as parents, siblings and grandparents.

These are necessary to reflect the family and cultural norms of South Africans 3.

Domestic Workers – COSATU strongly welcomes the long overdue inclusion of domestic workers under the coverage of the Compensation Fund.
This will benefit the almost 1 million domestic workers who have unconstitutionally been excluded to date.

The Bill should not have been delayed for so many years, and the result has been that countless domestic workers have been denied Compensation Fund relief.

4.

Post-traumatic stress disorder (PTSD) – COSATU welcomes the inclusion of PTSD.
This is critical for many workers exposed to violent or other horrific workplace incidents and will benefit security guards, mine workers, correctional service officers and many other workers exposed to violent and other traumatic incidences.

Furthermore, it will provide relief to women workers who have been subjected to violence and abuse.

5.

Resultant Disease Cover – COSATU welcomes the inclusion of cover for diseases resulting from the workplace.
This is critical for many workers exposed to unhealthy workplaces.

Examples include exposure to asbestos in the mining and construction sectors, hazardous materials in the chemicals industries, and more recently Covid-19.

This will provide security and relief to millions of workers and their families.

6.

Compensation Fund Board – COSATU supports the provisions setting out Board membership and NEDLAC’s role in facilitating nominations from organised labour and business.
This is an employer and employee scheme and needs to reflect that reality.

COSATU further supports Board membership criteria and welcomes the criteria for removal of Board members.

7.

No-fault rule – COSATU welcomes the introduction of no-fault rule when determining compensation, which is important to avoid the unfair exclusion of workers.

Accidents will often include some degree of fault.

The Compensation Fund is meant to assist workers with their medical costs, rehabilitation, reintegration, etc.
as well as their families.

It should not be used to punish workers and their families during already trying conditions.

76 8.

Ten per cent of earnings – COSATU supports the provision for fines of up to 10% of earnings to offending employers in certain instances.

Fines are necessary to ensure that employers take compliance seriously and that those who blatantly break the law are dealt with firmly.

Requirements to meet compliance should be fair, rational and not onerous.

9.
9.

Prescription – COSATU welcomes the extension to submit claims from 12 months to 3 years.

This will assist workers battling to recover and those who are unaware of their rights or lacking the means to submit claims.

Government, employers and unions will need to each play their respective roles in ensuring that all employers and employees are aware of the provisions of the Act.

10.
10.

Additional time to lodge objections – COSATU welcomes the additional six months’ provision for workers to submit objections when good cause can be shown.

Often workers struggle to gather the required documentation.

This provision will provide additional space to do so if needed.

11.

Labour inspectors – COSATU welcomes provisions providing for the duties and powers of inspectors, in particular to issue compliance orders.
This is critical to ensuring the effective implementation of the Act and to protect the rights of workers to work in a safe environment.

These are critical to ensuring that inspectors are fully empowered and ensure that recalcitrant employers are held accountable.

12.

Road accidents – This provision is welcomed for cover for road accidents occurring during the course of work under the Compensation Fund.
COSATU further agrees with the prevention of double dipping during the course of work under the Road Accident Fund.

13.

Conditions upon lawyers – COSATU accepts the role of lawyers in what are often complicated submissions, particularly given the backlog.

However, lawyers’ excessive fees at the expense of claimants has often robbed claimants of the little monies due to them and further strained the Compensation Fund’s limited resources.
The conditions placed upon lawyers in the Bill is therefore accepted as well as the limitations on set court fees, however this needs to be enforced.

14.

Responsibilities of employers, contractors and sub-contractors – COSATU supports the inclusion of provisions providing for shared and appropriate responsibilities between employers, contractors and sub-contractors.
This is critical to ensure that workers’ rights are not undermined by contracting and sub-contracting and that all employers, contractors and sub-contractors are held accountable for their responsibilities.

15.

Incentives for progressive law-abiding employers – COSATU welcomes the provision for incentives for employers who comply with the Act and embrace good labour practices.

77 Employers need to embrace their roles in promoting labour market stability and decent work.
Boosted productivity spurs economic growth.

The proposed amendments by COSATU to the Bill are captured further in the report under responses from the Department of Employment and Labour.

3.4.

Injured Workers Action Group The Injured Workers Action Group (IWAG) is a coalition of workers, medical service providers, employers and administrators who engage constructively on Compensation of Occupational Diseases and Injuries related issues.
IWAG notes that Cabinet requires a Socio-Economic Impact Study (SEIA) to be conducted for any piece of legislation.

The Bill’s SEIA is not fit for purpose.

The Bill, written in 2015, is six years out of date and was conducted under a different Minister and President.
The Bill was written under the old UMehluko system which has since been replaced and was conducted and written in just two months, it failed to interview and take into account the impact of the Bill on a single medical service provider (MSP).

It also failed to interview domestic workers and failed to interview single third party administrators or banks.

Section 43(4) of the Bill seeks to prohibit medical service providers from ceding their claims for payment by the Compensation Fund.
This would have resulted in third party administrators who assist the medical fraternity with administration and funding no longer being able to provide this service in the absence of financial and legal security.

IWAG maintains that should the provisions in the Bill stand, thousands of MSPs will lose their constitutional rights and be forced to do their own administration and to claim directly and individually against the Compensation Fund.
Without the support and benefits of third party administrators and funding, MSPs may choose not to treat injured on duty workers or patients.

IWAG notes that section 43(4) of the Bill was removed by the Portfolio Committee on Employment and Labour after its deliberations and was replaced with the insertion of clauses after the public participation process with no explanation, justification or opportunity to question its reasoning or rationale.
The clauses allow the Compensation Fund to effectively cut out any third party or entity from registering and transacting with it.

The objectives and rationale for such registration are not made, the criteria are not clear and the manner to be prescribed has not been developed.

The Compensation Fund at no time provided an explanation 78 of the reasons or justification for registration to transact with it.
This clause arrogates potentially huge and unfettered power in the hands of the Compensation Fund and effectively removes parliamentary oversight.

IWAG therefore implores the Committee to exercise its parliamentary oversight and legislative powers and protect the powerless from arbitrary regulation by rejecting the Bill.

3.5.
3.5.

Compsol Compsol is an established service provider of services to medical service providers, including some of the biggest hospital groups and emergency medical services in South Africa.

For over twenty years Compsol has been an essential agent in fulfilling the constitutional right of access to healthcare workers under the Compensation for Occupational Injuries and Diseases Act [Act 130 of 1993].
Compsol asserted that the most recent statements of the Compensation Fund reflect that it submits some 35 per cent of the value of all medical accounts administered by the Compensation Fund.

This represents 47 per cent of the volume of accounts, and Compsol is accordingly a very significant player in the BILL system.
Compsol further maintains that to ensure that the Compensation Fund complies with its constitutional and statutory obligations, it has been obliged to litigate against the Compensation Fund on various occasions.

It has instituted no fewer than 132 actions and applications against the Compensation Fund or Commissioner, the Director-General of the Department of Employment and Labour and the Minister of Employment and Labour.
Compsol notes that regrettably it remains continually required to enforce compliance, especially the Compensation Fund.

In its view therefore further litigation is unfortunately unavoidable.

During October 2018, Compsol noted with regret a new stratagem, which in its view, is intended by the Compensation Fund to relieve it of prefunding/factoring third parties like Compsol.

The Bill was published calling for public comment.


In the view of Compsol, this Bill sought to have inserted, an otherwise worthy and well-intended statutory amendment of the Act, a means of destroying Compsol and its competitors.

Compsol maintains that this was done through clause 43(4) of the Bill and the associated attempt to amend the definition of the term compensation.
These provisions purport to eviscerate it and circumstanced medical service providers by prohibiting the long standing and court mandated cession of medical invoices against the Compensation Fund.

The effect of the 79 intended provisions would be that Compsol is prohibited from continuing to act as an invoice factor as it has done.
Compsol further maintains that the Bill was never formally presented to the National Assembly and appears to have been replaced by the 2020 Bill [B 21-2020], which has since become [B 21B-2020].

This Bill, in the same manner as the proposed 2018 Bill, included proposed amendments to the Act, voiding the cession of relinquishment of “medical claims”.
Compsol maintains that following lengthy debate by the Portfolio Committee on Employment and Labour, and withdrawal of the intended amendment by the Compensation Commissioner and the Department of Employment and Labour, this clause was replaced by the following provision adopted by the National Assembly which appears in the version of the Bill before the Select Committee: (4)(a) No third party will be allowed to transact with the Compensation Fund unless they are registered with the Compensation Fund in the manner as prescribed.
(b) All third party service providers that are already transacting with the Compensation Fund must register with the Compensation Fund within six months after the commencement of the Compensation for Occupational Injuries and Diseases Amendment Act, 2021.

(5) For the purpose of this section, a third party means any entity that transacts with the Fund with the aim of assisting either the employee, employer, medical service provider or pensioner with the processing of claims at the Compensation Fund.
Compsol asserts that an administrative shortcoming must be noted, namely that no public comment was ever called for in respect of the above quoted change to the Bill.

The original Bill called for comment, comments were submitted and considered, and an amendment to the Bill was made introducing a completely new and substantial matter, namely the registration of third parties with the Compensation Fund.
The Bill that is therefore now before the Select Committee has never been subjected to public scrutiny or comment and the Department has not provided any guidance, commentary or information in regard to the proposed registration, despite having itself suggested the proposed amendments.

A material passage of time has elapsed since the proposal and the matter appearing before the Select Committee.
Compsol maintains that the relationship between the Compensation Commissioner, the Department and third parties, is acrimonious at best.

It raises concerns as to the true intention of the Compensation Fund Commissioner and the Department behind acceding to the demands 80 made by the public.
In Compsol’s view, this is reinforced by the fact that instead of just removing the prohibition on cession of BILL medical invoices from the Bill, it introduces a replacement mechanism to throttle/remove/regulate prefunding third parties as a major stakeholder, who are in the first instance already registered with the Council for Debt Collectors and regulated in accordance with the Debt Collectors Act (Act 114 of 1998, as amended) and associated Code of Conduct.
Compsol therefore submits that this intended amendment of the Act must be handled with great circumspection, as it could have an immense prejudicial impact on the beneficiaries of the Act, namely the injured employees of this country and the Medical Service Providers, treating them in good faith, seeing that the majority are trauma injuries and needs medical attention post haste.
Compsol further maintains that for these reasons it is of great concern that, as at the date of this submission, the details and requirements of such registration for third party pre- funders/factorers are still unknown.

In its view, it would be extremely prejudicial for the public to meaningfully consider and attempt to make comments on this aspect of the Bill as it now stands without knowing how accommodating or stringent those details and requirements would be.
Recommendations made by Compsol to the Bill are captured further in the report under responses from the Department of Employment and Labour.

3.6.

COIDLINK COIDLINK is an injury on duty claims administrator, which works with 1 800 medical service providers to administer and provide them with working capital by prefunding injury on duty claims.
COIDLINK notes that it is in full support of the latest version of the Bill [B 21B-2020] as adopted by the National Assembly and the consultative process undertaken.

3.6.1.

Background on section 73(4) COIDLINK notes that the original Bill, published in the Government Gazette December 2018 for public comment, contained the original version of clause 43 which sought to amend section 73(4) of the [Act 130 of 1993].
81 Any provision of any agreement existing at the commencement of this Act or concluded thereafter in terms of a service provider cedes or purports to cede or relinquishes or purports to relinquish any rights to medical claims in terms of this Act, shall be void.
This proposed amendment, commonly referred to as “cession of relinquishment of medical claims” in the view of COIDLINK sought to discontinue the practice of pre-funding or purchasing medical claims from medical service providers who treat workers injured on duty.

3.6.2.

Actions taken on section 73(4) COIDLINK noted that the Portfolio Committee on Employment and Labour facilitated a transparent consultative and thorough process to engage on the Bill.
COIDLINK was one of the stakeholders who made submissions representing workers, employers and medical service providers to the Portfolio Committee.

The majority of the participants were against the intended section 73(4).

The submission by COIDLINK and submissions by many other stakeholders in various clauses were properly considered, including the more contested clause 43(4).
The final clause 43(4) agreed to the by the Portfolio Committee and passed by the National Assembly on 9 September 2021 was as a result of this consultative process and a compromise of all stakeholders.
The proposed amendments to section 43 was expressly declined by the Portfolio Committee, and the following wording was agreed to and accepted in the Bill that was adopted on 31 August 2021: Notwithstanding the provision of subsection (2) the medical practitioner may after the claim has been finalised or the period referred to in subsection (1) has lapsed, apply for reopening of the claim and payment of further medical costs.
(4)(a) No third party will be allowed to transact with the Compensation Fund unless they are registered with the Compensation Fund in the manner as prescribed.

(b) All third parties that are already transacting with the Compensation Fund must register with the Compensation Fund within six months after the commencement of the Compensation of Occupational Injuries and Diseases Amendment Act, 2021.

3.6.3.
3.6.3.

Irrational Reaction (Notice 526/615) 82 COIDLINK asserts that the Compensation Fund reacted irrationally to the amended clause 43(4) by publishing Notices 526 and 615.

The Government Gazette 526 was published on 10 September 2021, exactly one day after the National Assembly adopted the Bill.

Government Gazette 615 was published on 19 October 2021 inviting public comment.
COIDLINK maintains that both notices exclude pre-funding third parties from being paid directly by the Compensation Fund, effectively banning them through operational means and rendering the amended clause 43(4) null and void.

In COIDLINK’s view, the Notices clearly undermine the parliamentary legislative process and will cause job losses and business closures.
The Notices extend beyond the enabling Compensation for Occupational Injuries and Diseases Act and seek to create a legal instrument to limit customers of the Compensation Fund wishing to transact.

The Compensation Fund is clearly using back door tactics to defeat the ends of clause 43(4) as amended by the Portfolio Committee and passed by the National Assembly.
COIDLINK alleged that the Chairperson of the Portfolio Committee on Employment and Labour submitted a letter to the Minister for Employment and Labour on 3 November 2021 seeking clarity on the following: • What informed the basis for Notice 615?

• How will Notice 615 influence the implementation of the Bill once signed into law?

• Is the intention of the Commissioner to make it impractical to implement clause 43(4)?
• Why does the Compensation Fund want to exclude third parties now after the implementation of the Account Verification System?

To COIDLINK’s knowledge, to date no response was received.

It is not opposed to the bank verification process which it regularly undertakes with the Compensation Fund.
COIDLINK is however opposed to stopping direct payments from the Compensation Fund to pre-funding third parties, which operationally bans the business of pre-funding and makes it impractical to implement the amended clause 43(4).

COIDLINK submitted a letter to the Commissioner of the Compensation Fund and the Minister of Employment and Labour on 10 December 2021 to raise concerns, particularly as it believes that this is an undeniable attempt to get rid of pre-funders.
To date, no progress has been made despite commitments from the Minister of Employment and Labour.

83 3.6.4.

Recommendations COIDLINK maintains that the Minister of Employment and Labour needs to explain Government Gazette Notices 526 and 615 which relate to the Bill, in particular section 43(4).

In its view, unless Government Gazette Notice 615 is withdrawn, clause 43 of the Bill will be rendered invalid, effectively rendering the parliamentary process null and void.
COIDLINK therefore urges the Select Committee to be vigilant to ensure that administrative powers are not abused by the Commissioner of the Compensation Fund to frustrate the legislative process.

In its view, the disregard for the parliamentary process is evident from Notices highlighted and has been issued to frustrate operations of pre-funders as third parties.

Furthermore, any administrative Notices must be strictly in line with the Act and must not be used to implement policy changes.

4.
4.

RESPONSES FROM THE DEPARTMENT OF EMPLOYMENT AND LABOUR 4.1.
Responses from the Department of Employment and Labour in respect of stakeholder submissions on the Employment Equity Amendment Bill [B 14B-2020] Stakeholder Submission summary and issues Response raised Section 15A Bill Business Unity • If the numerical targets which are set constitute • Disagree with the arguments by BUSA South Africa an absolute barrier or quota, which the that sector targets may constitute a barrier (BUSA) withholding of a certificate and with the or quota, if a certificate will be withheld opportunity to bid for Government work will for non-compliance.
do, that would fall foul of Section 15(3) of the • Department are disappointed that BUSA is BILL.
distancing itself from the NEDLAC • Giving the Minster or any of his or her officials Agreement where all social partners, the power to set targets by decree outside of the including BUSA agreed that to ensure that legislation promulgated specifically to give sector targets set in terms of section 15A are effect to Section 217(3) without setting a not quotas, flexibility must be created to similar legislative framework within which this allow employers to regulate/ set their own is to be done, in those circumstances, conflict Annual targets towards achievement of the with both Sections 217(1) and 217(3) of the Minister’s regulated sector targets; and in Constitution, and not be rescued by the proviso addition, employers should be given an opportunity to raise a justifiable reason/ 84 in Section 217(2), which of itself needs to reasonable ground for failure to comply with comply with Section 217(3).
the self-regulated annual targets before any punitive measures can be taken against the employer.

Such sanctions include, not issuing an EE Compliance Certificate or referring non-compliance to the Labour Court for a penalty.

• Furthermore, the framework within which sector targets will be set is prescribed in the draft EE Regulations, 2018 as agreed by social partners.

There is nothing unconstitutional in this matter.


BUSA • • Sector target should be set with the respective • Agree that where possible, consensus must be industry in a joint consensus seeking approach; reached with sector stakeholders on the and setting of sector targets.

Act needs to make provision for instances • However, Department disagrees that the Bill where agreement cannot be reached between must make a provision for another processes the Minister and the relevant sector.
in instances where there is no agreement on the sector targets.

After 24 years of the BILL with no significant progress due to self- regulation by employers, we believe the Minister must be given powers to still regulate sector targets after consultation with sector stakeholders and on the advice of the Commission for Employment Equity.
Master Builders • Section 15A is silent on the criteria for • Disagree, section 15A is clear that the South Africa identifying and setting sectoral numerical Minster may identify national economic (MBSA) targets.
sectors taking into account any relevant code • Section 15A is silent on the need for consensus contained in the Standard Industrial between the Minister and the economic sectors Classification of all Economic Activities in determination of numerical targets, which published by Statistics South Africa demonstrates adequate consultation and is (StatsSA) – this was done and 18 economic crucial to setting and achievement of any sectors were identified and published for targets set.
public comment in the Draft EE Regulations, • MBSA proposes that section 15A(2) should 2018.

NEDLAC social partners agreed on include a requirement for the Minister to these sectors and no opposing public determine a criteria for identifying and setting comment was received on these sectors.

sectoral numerical targets jointly with the • Agree that where possible, consensus must be economic sectors.
reached with sector stakeholders on the setting of sector targets, but the Minister must still have powers to set targets where there is no consensus upon receipt of advice from the Commission for Employment Equity (CEE).
85 Financial • The current targets in hard-coded form with the • Disagree with the arguments by FIA that Intermediaries current fines and penalties contained in the sector targets set in terms of section 15A of Association of BILL amount to quotas as non-compliance can the Bill are hard-coded and amount to quotas, Southern Africa impact the licences of financial services as a result, are unconstitutional in terms of the (FIA) providers.
Constitutional Court judgement in the South • The Constitutional Court in South African African Police Service V Solidarity obo Police Service V Solidarity obo Barnard 2014 Barnard 2014 (6) SA 123 (CC).
(6) SA 123 (CC) has emphasised that: • It is important for the Committee to note that • suitably qualified individuals must be the it was agreed at NEDLAC with all social beneficiaries of affirmative action under the partners that to ensure that sector targets set Bill; and • measures directed at affirmative action may include preferential treatment and numerical goals but must exclude “quotas” in terms of section 15A are not quotas, flexibility must be created to allow employers to regulate/ set their own Annual targets towards achievement of the Minister’s regulated sector targets – this will be done after consultation with employees as per section 16 read with section 17 of the BILL.
• In addition, NEDLAC social partners agreed that employers should be given an opportunity to raise a justifiable reason/ reasonable ground for failure to comply with the self-regulated annual targets before any punitive measures can be taken against the employer.

Such sanctions include, not issuing an EE Compliance Certificate or referring non-compliance to the Labour Court for a penalty.
The Banking • Section 15A(3) gives powers to the Minister to • Disagree, BASA commenting on the Association of South set targets in consultation with the National incorrect version of the Bill.
The Bill was Africa (BASA) Minimum Wage Commission and not the corrected by the Portfolio Committee on relevant sector, this is concerning as this is not Employment and Labour to revert back to in alignment with the NEDLAC agreements NEDLAC agreement to enable the Minister discussed by business and the social partners.

to set sector targets after consulting the BASA recommends that the Minister reverts relevant sector stakeholders and on the advice back to the NEDLAC agreement.

of the CEE.
of the CEE.

BASA • BASA of the view that sector targets should be • Agree that national organisations like BASA set nationally and not differentiated by region.

should not be forced to comply with regional If regional targets apply, then businesses with sector targets, but with national sector targets.

national footprint will have to comply with In this regard, the concern by BASA will be multiple sets of targets.
This will result in a catered for, if the proposed amendment considerable burden in terms of restructuring, submitted by COSATU on Section 42(a) of managing and monitoring the compliance the principal Act, to change the word “and” requirements for businesses that operate to “or” is considered and accepted by this nationally.

Committee.
Committee.

86 • The proposed amendment by COSATU to section 42(a) will enable organisations like BASA that operate nationally to choose between national and regional demographics of the Economically Active Population (EAP) • Therefore, we request the Committee to consider the proposed amendment to Section 42 (a) as proposed by COSATU in their oral submission/ presentation.

(See slide 19 hereunder) Construction Since there is insufficient empirical evidence to • Disagree, there is no need for research.
Alliance South enable the setting of targets.

CASA commits to Sufficient empirical evidence from the EE Africa (CASA) collaborate with DEL in conducting research that data collected from employers in the will inform rational target setting as short term Construction sector through EE reports measure.

submitted annually to DEL – this data indicates that there is insignificant transformation in this sector.
Financial • Section 15A(2) “Minister may, after Disagree with the proposed amendment to Section Intermediaries consulting in consultation with the relevant 15A(2) to delete the words “after consultation” Association of sectors including Regulators where applicable, and the new insertions of the words “in Southern Africa and with the advice of the Commission, for the consultation with” and “including Regulators (FIA); purpose of ensuring the equitable where applicable” because it is important that the Association Savings for and representation of suitably qualified people Minister should have powers upon receipt of an from designated groups at all occupational advice from the Commission for Employment Investment South levels in the workforce, by notice in the Gazette Equity to regulate sector targets in instances where Africa (ASISA); and set numerical targets for any national there is no consensus reached with the relevant South African economic sector identified in terms of sector stakeholders.
Otherwise, the intended Insurance subsection (1).” objective of sector targets will be defeated and the Association (SAIA) • Section 15A(3) “A notice issued in terms of mischief of employer’s self-regulated targets, subsection (2) may set different numerical which never worked over 24 years of BILL will be targets for different occupational levels, sub- perpetuated – no transformation of workplaces sectors or regions within a sector or on the will be realised in our lifetime.
basis of any other relevant factor.

Where a Disagree with the proposed amendments to sector provides sufficient reasons for such a Section 15A(3) to cater for skills requirements distinction, such as a difference in skills because employers had over 24 years of Skills requirements, the Minister may set different Development Act to develop the skills set required numerical targets per sub-sector or region.” to transform their workplaces.
Financial Intermediaries • Section15A(4 “A draft of any notice that the Disagree with the proposed “90” days because the Minister proposes to issue in terms of 30 days prescribed in the Bill is the minimum time Association of subsection (1) or subsection (2) must be frame required and not a maximum period for the Southern Africa published in the Gazette, allowing interested publication of a notice.
Disagree that the Minister (FIA); parties at least 30 days to comment and engage 87 with the Minister thereon.” FIA suggests that must again engage with the sector after publication 30 days be extended to 90 days.

of notice.
of notice.

Association Savings for and Investment South Africa (ASISA); and South African Insurance Association (SAIA) Section 16 vs Section 15A Bill BUSA • The effect of the proposed amendments is that • Disagree with arguments by BUSA that the the Minister may impose sectoral numerical sector targets set by the Minister in terms of targets.
These prescribed numerical targets Section 15A will disempower employers to will effectively override the targets contained consult with employees and are in conflict in a designated employer’s employment equity with the requirements of section 16 read with plan.
section 17 of the BILL, because BUSA was • However, in terms of section 16, read with part of the NEDLAC Agreement, where in all section 17, of the current employment Equity NEDLAC social partners agreed that Act, designated employers are legally required employers should be given powers to regulate to consult with their employees (by way of an their own Annual targets in the EE Plan employment equity committee) on the content towards achievement of their relevant sector of the targets to be achieved) and targets in consultation with the employees as implementation of their employment equity required by sections 16 and 17 of the BILL.
plans.

In fact, it is important to highlight that the • If the BILL is amended, it will mean that an implementation plans for the amendments is that employer will be bound to use the sectoral the Minister would regulate sector targets for a targets fixed by the Minister in its employment period not less than three years and not more than equity plan, and consultation with employees five years, to allow the regulatory flexibility for would be rendered meaningless.
The employers in consultation with their employees to employer’s hands will be tied, regardless of the regulate their own Annual targets in the EE Plans input from its employees.

BUSA does not towards the achievement of the sector targets.

believe that this disempowering consequences should be allowed to stand, given its potential disruptive effect on workplace harmony and labour relations.
Section 20(2A) and Section 42(1) of the Bill Financial Section 20(2A): Disagree with the proposed deletion of the word” Intermediaries (2A) The numerical goals set by an employer in sectoral”– employers are required in terms of Association of terms of subsection (2) must comply with any Section 15A to align their numerical goals in their Southern Africa sectoral target in terms of section 15A that applies EE Plans with sector targets set by Minister, in this (FIA); to that employer.
Association Savings for and regard, the word “sectoral” is intended to link the EE numerical goals in the employer’s EE Plan 88 Investment South Africa (ASISA); and South African Insurance Association (SAIA) with the sector targets regulated in terms of section 15A.
FIA; ASISA; SAIA; Section 42(1) (aA): Disagree with the proposed amendments because and BUSA (aA) whether or not the employer has complied with section 53(6) of this Bill already caters for the a sectoral target or taken reasonable steps to prescription of the justifiable reasons/ reasonable comply with/ achieve the applicable target as set out grounds for failure to achieve the set sector targets.

in terms of section 15A applicable to that employer.
Furthermore, the justifiable reasons/ reasonable grounds are already prescribed in Regulation 16 and in the BILL15 form in the Draft EE Regulations, 2018, which was agreed upon by NEDLAC Social Partners, including Organised Business.
Section 42(a) of the Bill, 2018 formed part of the NEDLAC Agreement COSATU • • • • It is important for targets to take into account Agree with the proposal by COSATU that it is regional and sub-regional demographic important for targets to take into account regional diversity; demographic diversity because South Africa is a South Africa is a diverse nation and this is often diverse nation and this is often linked to linked to geography; geography.
Therefore, we request the Committee A blanket uniform approach does not work and to consider the proposed amendment to Section one size fits all targets can cause social strife; 42(a) of the principal Act as proposed by and COSATU as this amendment formed part of the Provisions requiring Minister to engage when NEDLAC agreement and was mistakenly omitted setting targets with Employment Equity in the Bill tabled in Parliament.
(vs: page 4, Commission will help to ensure targets are paragraph 3.9 of NEDLAC Report) If agreed by thoroughly considered beforehand.
Committee, section 42(a) will read as follows: In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act may, in addition to the factors stated in section 15, take the following into account – (a) The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational level in that employer’s workforce in relation to the demographic profile of the national and or regional economically active population; Section 53 Bill 89 Financial Section 53(6)(a): Disagree with the proposed additions because it Intermediaries (6) The Minister may only issue a certificate in terms will be difficult to measure reasonable steps taken Association of of subsection (2) if the Minister is satisfied that – by employers, and even if we were to prescribe/ Southern Africa (a) the employer has complied with a numerical define the reasonable steps, we run the risk of (FIA); target set in terms of section 15A that applies to that opening a flood gate of condoning non-compliance Association for employer or has taken reasonable steps to comply with the requirements of the BILL.
In fact, the Savings and with those targets; Investment South Africa (ASISA); and South African Insurance ‘reasonable steps’ were removed from section 42 through the 2013 amendments of the BILL to mitigate the risks of limiting the compliance and enforcement mechanisms of this Act.
Association (SAIA) Section 53(6)(b): Disagree because it was agreed by NEDLAC In relation to section 53(6)(b), the Bill must set out Social partners that justifiable/ reasonable grounds factors that are to be considered in determining must not be included in the Bill itself, but in the whether an entity has a reasonable ground which regulations to create regulatory flexibility to cater justifies non-compliance, and that these factors for future developments.
Rationale is that, it is less should be included in the Bill itself.

ASISA and complex to review and amend the Regulations SAIA suggest that the grounds contained in the draft through NEDLAC process, rather than amending 2018 regulations should be used for this purpose, the Act, which has to go through the Parliamentary with the inclusion of “level of progress made process.
Justifiable grounds in the Draft EE towards achieving the targets” and any other Regulations, 2018 were agreed by NEDLAC and relevant factor”.

no opposing public comments were received on these.

Master Builders Section 53(6)(b): • Disagree with the proposal that acceptable South Africa The section is silent on the definition of acceptable reasonable grounds should be defined in the (MBSA) reasonable grounds to justify a failure to comply – Act.

It was agreed by NEDLAC Social this may be subject to abuse.
partners that justifiable/ reasonable grounds MBSA proposes that clear definitions of acceptable must not be included in the Bill itself, but in reasonable grounds to justify a failure to comply the regulations to create regulatory flexibility should be included in the Act.

to cater for future developments.


A compliance period of no less than the minimum • Disagree with this proposal to include a required for completion of an occupational minimum period to complete a qualification qualification dominant for each sector, should be as part of reasonable grounds for failure to included in the definition of acceptable reasonable comply – how do you cater for the skills grounds for failure to qualify.
needs of each sector – this will be cumbersome and open to abuse by employers in each sector.

• Furthermore, justifiable reasons in the Draft Employment Equity Regulations, 2018 already agreed by NEDLAC Social partners and no opposing public comments were received in this regard.
90 BUSA Section 53(6)(b): • Disagree with the arguments by BUSA that The criterion that an employer should not have had the criterion for issuing of EE Compliance any unfair discrimination findings from the CCMA Certificate should not include in the criterion, or Labour Court in the last 12 months, is irrational the unfair discrimination cases by CCMA and and unduly onerous.
It allows the Minister the the non-payment of national minimum wage power to usurp the powers of those forums to because the criteria listed under Section determine their own dispute resolution processes 53(6)(b) was agreed by all NEDLAC Social and to assess appropriate remedies.

For example, an partners without any amendment (vs: employer may be ordered to pay money or restore NEDLAC Report, page 4, paragraph 3.10.1).

the position of a wronged employee.


To prevent • In fact, the Department is perturbed by such an employer for bidding for State contracts BUSA’s arguments seeing that they are now amounts to double punishment and is unjustified.

dissociating themselves from the NEDLAC Similarly, the criterion on a finding about non- agreement.

payment of minimum wages in the last 12 months is problematic.

Appropriate remedies lie in the National Minimum Wage Act and the Labour Relations Act.
Fines and Penalties (Not part of Bill) Financial • The FIA does not believe that the current • Disagree with the proposal from FIA, ASISA Intermediaries Association of provisions in respect of fines which are levied and SAIA that the current fines and penalties for non-compliance with other sections of the in Schedule 1 of the Employment Equity Southern Africa Act, should apply to non-compliance with Amendment Act (BILLA), 2013 are (FIA) section 15A.
inappropriate or should be applicable to non- • FIA recommends that the Minister consult with compliance with sector targets set in terms of the relevant sectors on the appropriate fines and section 15A.

penalties at the time of consultation on the sub- • In fact, the issue of the current fines and sector targets.
penalties in the BILLA, 2013 was never a • FIA is concerned that excessive punitive fines matter of concern to any social partner during will lead to regulatory failure and a systemic the NEDLAC negotiations on the EE event.

Amendment Bill.
Amendment Bill.

• Department strongly believe that any kind of Association for • ASISA and SAIA recommend that the current non-compliance with any provision of the Savings and fine regime not be applicable to non- BILL must be treated in the same manner and Investment South compliance with targets set in terms of section the Courts should apply the same sanctions/ Africa (ASISA); and 15A, and that this is a matter to be considered penalties in Schedule 1 of the BILLA, 2013.
South African for inclusion as a topic for further consultation Insurance once the Bill has been promulgated, and prior Association (SAIA) to publication of notices in terms of section 15A.

91 Further Departmental responses to concerns raised in respect of the Bill 4.1.1.
Section 53 (Bill) vs Procurement The Department noted that there are other compliance requirements with other laws outside procurement, which are currently prerequisite for access to State contracts such as: • SARC Certificate; • BBBEE Certificate; and • New Employment Equity (EE) amendment proposal is to add the EE Compliance Certificate to the list to expedite transformation of the economy.
In respect of the rationale as to why section 53 of the Bill was not promulgated in 1998: • Employers required time to develop and implement systems and processes to comply with the requirements of the Bill, e.g.
establish HR Systems to collect workforce data; conduct workplace analysis; develop and implement EE plans with numeral targets and goals; and then submit EE reports to reflect progress made; • There were no tools and criteria in place to assess compliance, including regulations and systems to issue certificate of compliance under section 53 – now tools and criteria are developed and 99.9 per cent of EE reports are submitted online to enable collection of quality data and analysis of progress made in the labour market after 23 years of the Bill; and • Proposed sector EE targets is one of the key mechanisms to assess compliance of designated employers.
4.1.2.

Process of issuing of Compliance Certificate The Department indicated that issuing of an EE certificate of compliance will be done by declaration (Bill form) and automation through the EE system online facility.

The aannual assessment of annual EE targets will be conducted immediately through the automated online submission of EE reports.

Automation will make it easy to Save, Print and Email the certificate when required – access to the certificate online will be 24/7.
The EE system will be linked to the Commission for Conciliation, Mediation and Arbitration (CCMA) Case Management 92 System and the National Minimum Wage (NMW) Exemption System to ensure back-end verification with the CCMA Arbitration Awards for discrimination cases; and to check if employers have been exempted from paying the NMW, the turn-around time will be expedited to issue certificates.

No manual certificates will be issued by labour inspectors/any official.
Certificates will be issued automatically by the EE system after the submission of EE reports (designated employers); and small employers/non-designated employers – a certificate will be issued after submission of a request for a certificate (BILL15 form) online.

4.1.3.
4.1.3.

Law enforcement vs corruption / bribery The Department notes that SAFCEC raised a concern about labour inspectors receiving bribes in exchange for certificates of compliance and concedes that we live in an environment wherein corruption/bribery is rife.

However, law enforcement cannot be stopped based only on the fear of corruption/bribery.

The two parties involved in corruption, i.e.


the corruptor and the receiver of a bribe must be dealt with to ensure that we curb/eliminate the scourge of corruption.

The Department must continue to enforce the law.

Both labour laws and criminal laws must be enforced to maintain compliance, peace and stability in the labour market and society as a whole.

The Black Business Council in the Built Environment (BBCBE) proposes to forge a partnership with the department to increase enforcement capacity.
There is no need to amend the BILL and we are not averse to partnerships.

Proposals to partner with the BBCBE or any other organisation are welcome as long as we can improve compliance with the Bill and transform the labour market.

4.1.4.
4.1.4.

Areas of agreement to amend in the Bill The Department agrees with the following amendment to section 42(a) of the Amendment Bill, 2018 (part of NEDLAC agreement) as proposed by COSATU and in this regard, request the Committee to consider the inclusion of this amendment in the current Bill.
Upon the Committee’s consideration and approval, section 42(a) would read as follows: 42(a) In determining whether a designated employer is implementing employment equity in compliance with this Act, the Director-General or any person or body applying this Act may, in addition to the factors stated in section 15, take the following into account – 93 (a) The extent to which suitably qualified people from and amongst the different designated groups are equitably represented within each occupational level in that employer’s workforce in relation to the demographic profile of the national and or regional economically active population; 4.1.5.
Update on consultation process with relevant sector stakeholders The Department reported that in June 2019, the Department and the Commission for Employment Equity started with the consultation process with each economic sector separately with the purpose of reaching consensus on the setting of EE sector-specific targets for the designated groups, particularly at the top four occupational levels (Top Management; Senior Management; Professionally Qualified; and Skilled Technical level); and for persons with disabilities.
Notwithstanding that the promulgation of the EE Amendment Bill is still underway in the parliamentary processes, the Department and the Commission for Employment Equity have made significant strides in relation to the consultation process with relevant sector stakeholders.

Thus far, consensus has been reached on the sector targets with the financial and insurance sectors.
The Department is busy conducting follow-up engagements with other sectors regarding the Department’s proposed targets tabled in the initial round of consultation.

4.1.6.

Constitutionality of section 15A Quotas Vs Employment Equity target The Department sought to make a distinction between quotas versus employment equity (EE) targets, noting that quotas are mandatory outcomes whereas EE targets are aspirational goals.
Quotas are rigid and must be achieved at all costs whereas EE targets are flexible but attempts must be to achieve goals where reasonably practicable.

Furthermore, for quotas, penalties are instituted for missed outcomes and no consideration is made of justifiable reasons whereas there is flexibility in EE targets built into the Draft EE Regulations 2018, with justifiable reasons reflected in the Bill form.
The Department maintains that flexibility is built in two ways, namely: • Employers have powers to set their own annual EE targets in the EE plan through consultation with employees and trade unions in terms of section 16 of the Bill towards achieving the regulated EE target (over a three to five-year period).
• Regulation 16(4) states that justifiable grounds not complying with the targets include: 94 • • • Insufficient recruitment opportunities Insufficient promotion opportunities Insufficient target individuals from designated groups with the relevant qualification, skill and experience • Court Order • Transfer of business • Mergers/Acquisitions and • Economic impact on business circumstances.
The Department therefore maintains that in light of the issues raised above with respect to flexibility, it is clear the sectoral EE targets are not quotas.

95 4.2.
Responses from the Department of Employment and Labour in respect of the Compensation for Occupational Injuries and Diseases Amendment Bill [B 21B-2020] Stakeholder Submission summary and issues Response raised Definition of Accident BUSA Amendment to definition of Accident On the definition of accident BUSA proposed that the definition of “Accident” • The following definition of accident was should read as follows: agreed upon by the social partners at “accident” means an incident or occurrence arising NEDLAC of which BUSA is a out of or in the course of employee’s employment constituency: and resulting in personal injury, illness, • “accident” means an [accident] occupational disease or the death of the employee’’ incident or occurrence arising out of and in the course of employee’s employment and resulting in personal injury, illness, occupational disease or the death of the employee’’ • COID is an occupational injury instrument to assist workers who sustain injury in the course of them doing their job.
• Removal of the word “and” and replacement with “or” as proposed by BUSA delinks the type of work from the injury itself.

The state offers other forms of social protection for any injury other than that caused by the occupation of the work.

• • The department proposes that the wording in the definition be left as published in the Bill On the insertion of the occupational before the word disease, this was agreed upon and done at the level of NEDLAC.

See the definition above.


Transfer of powers of the Director-General 96 BUSA Amendment of section 4 On the transfer of the Director-General’s • BUSA further submitted that there are administrative powers to the Commissioner inaccuracies with regard to the transfer of • This was also agreed upon at NEDLAC and Director-General administrative powers to the in order to avoid human error the Office of Commissioner.
The word Director-General the Chief State Law Adviser advised on the still appears in instances where it must be need for the omnibus provisions in clause 62 replaced by the Commissioner.

of the Bill (not section 62).
• The clause’s heading is “Substitution of certain expressions in Act 130 of 1993” Relevant for this purpose is clause 62(d) which reads as follows: • (d) By the substitution for the expression “Director-General” wherever it occurs of the word “Commissioner” except in section 1 and section 18, section 30, section 50, section 55 and section 69” Notice periods and Schedule 3 and penalties BUSA Amendment of section 69 On 30 days’ notice period before amending • • BUSA further proposed that the notice period schedule 3 of the Act for the amendment of Schedule 3 should be 60 • Clause 39 amends section 69 and provides for days rather than 30 days.
Government Notice to be published at least BUSA proposed that the penalties should be 60 days before amending Schedule 3.

So this expressed in monitory terms rather than is line with BUSA submission on the matter.

percentages and that the Bill must still provide On fines and penalties (10%) for offence to be imposed by court.

• It was agreed at NEDLAC that we must decriminalize non-compliance to BILL by the substitution of the offences and fines provisions with the administrative penalties.
• It was also agreed that it is undesirable to put actual amounts of penalties but that percentages must be used.

(This may be the area of disagreement nonetheless the Bill was concluded as explained above.

Clause 42 is in line with what was engaged on at NEDLAC and provides for penalties and not fines.
Rehabilitation and return to work 97 COSATU Insertion of Section 70A (1)(c) and 2(b) On section 70A • COSATU proposed that the insertion of • The Department believes that the ambit of the Section 70A if enacted into law it will proposed Section 70A is wide enough to restrict the injured employees to their assist the injured employee to perform not previous employment and will not only the work he/she was doing at the time of empower them to perform work either as the accident or contraction of disease but also independent contractor or to be self- to be rehabilitated to engage in other employed.
economic activities such as independent • COSATU further submitted that Section contractor or self-employment.

The 70A (1) must provide for mandatory regulations and policies on rehabilitation will provision of Rehabilitation facilities, provide for the implementation of section service and benefits.

70A.

• The discretionary use of “may” is linked to the incentive to employers who participate in rehabilitation programmes on the reductions of premiums/assessments that employers must pay annually.
This is likely to get a buy- in from employers than the mandatory provision.

Issuing of licences in terms of Section 30 COSATU • COSATU raised a concern that the issuing of On the issuing of license to licensees licences to the licensees might fall in the hands • The license in their current form already of insurance companies who may deprive the contains built-in mechanism for monitoring employees of benefits on the basis of of the licensees in that in addition to the technicalities.
Section 30(7) conditions prescribed by the Minister, the • COSATU raised a further concern that how the Director-General is empowered to determine operation of licences will be supervised to the conditions for provisional settlement of ensure that workers’ claims are not the claims.

In other words, the Director- inappropriately rejected.
General will have to confirm the decisions • COSATU proposed that licences should be taken by the licensee before they are regarded issued to organisations subject to control of as final.

This is in terms of Section 62 read Boards consisting of an equal number of with Section 45. representatives of employers and registered • Section 30 already provides that the Minister union and that the awarding of licences is done may determine the conditions for the license through transparent and fair procedures.
and the financial securities thereof.

Board representation can form part of these conditions along with many other governance conditions • With regards to the awarding of licences, the Department agrees that the licence must be awarded through tender processes.

Investment of funds with the Public Investment Corporation 98 Black Business Amendment of section 18 On the investment of the funds with PIC by the Council for Built • BBCBE raised a concern that the Commissioner.
Environment (BBCBE) Commissioner should not have the power • The Director-General is the Accounting to transfer Funds to the PIC without the Authority of the Compensation Fund Director-General involvement.

even under the Bill.


The implication of • BBCBE further proposed that licences to this is that the Commissioner must still FEM to conduct business of behalf of the inform or even seek approval from the Fund in the construction sector must be Director-General for major financial advertised in order to empower players in decisions.

the market by tendering and to afford • The Commissioner will do all the black-owned businesses to compete for research and due diligence regarding the the issuing of licences.
portfolio under which the funds must be invested but the Accounting Authority has the final say in the matter.

The DG is accountable to the Minister who in turn is accountable to the Parliament regarding the funds of Compensation Fund.

• The Department agrees that the license must be awarded through tender processes.
Amendment to Section 73 – Amendment to Clause 43 COIDLINK, • The submissions of COIDLINK, Clause 43 which provides for the addition of COMPSOL and COMPSOL and IWAG are considered subsection (4) and (5) to section 73.

IWAG together because they are similar in • In terms of the subsection as amended by the nature.

The main contestation is the Portfolio Committee on Employment and insertion of Section 73(4) and (5) in the Labour, the Minister is empowered to Bill.
regulate the registered third parties • COMPSOL’s proposal that Section 73(4) (registered with the Fund) who transact with should provide for registration of any the Fund.

party claiming medical costs with the • The regulations will be published for public council for debt collectors and that it comment and also subjected to certification should be regulated in terms of Debt by the Office of the Chief State Law Adviser Collectors Act.

for constitutionality, reasonableness and legality.
Any legislation must be supported by regulatory framework.

• The Department of Employment and Labour does not agree that the Bill be rejected merely on the intimation and fear that the Minister may introduce draconian regulations in terms of 73(4).

To do so is to enter the angelic world of pronouncing on things still unknown.

99 • Compensation Fund administers Bill and the Minister will not have power to issue regulations in respect of parties that are regulated under Debt Collector Act.

100 3.
100 3.

Report of the Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour on the Compensation for Occupational Injuries and Diseases Amendment Bill [B 21B - 2020], dated 22 March 2022.
The Select Committee on Trade and Industry, Economic Development, Small Business Development, Tourism, Employment and Labour, having considered the subject of the Compensation for Occupational Injuries and Diseases Amendment Bill [B 21B - 2020] (National Assembly – sec 75), referred to it, reports the Bill with proposed amendments as follows: 1.

On page 15, in line 51, after "least" to omit "[30] 60" and to substitute "60".

CLAUSE 39 1.

On page 16, in line 52, to omit "2021" and to substitute "2022".
CLAUSE 43 CLAUSE 63 1.

On page 24, in line 26, after "Domestic", to omit "workers" and to substitute "employees".

2.

On page 24, in line 28, after “Act,” to omit "2021" and to substitute "2022".

1.

On page 24, in line 34, after “Act,”, to omit “2021” and to substitute “2022”.

CLAUSE 64 1.

Introduction 1 101 The Compensation of Occupational Injuries and Diseases Amendment Bill was referred to the Committee on 9 September 2021.
The Committee received a briefing on the Bill from the Department of Employment and Labour on 16 November 2021.

2.
Purpose of the Bill The purpose of the Bill is to amend the Compensation for Occupational Injuries and Diseases Act, 1993, so as to amend, substitute, insert, delete and repeal certain definitions and sections; to provide for matters pertaining to the Board and its members; to provide for the Commissioner to perform certain functions that were previously performed by the Director-General; to further provide for matters pertaining to rehabilitation, re-integration and return to work for occupationally injured and diseased employees; to regulate the use of health care services; to provide for the Commissioner to review pension claims or awards; to provide for administrative penalties; to regulate compliance and enforcement; and to provide for matters connected therewith.
3.

Process followed The Committee invited public comment through advertisements in newspapers and on radio.

The closing date for written submissions was 22 January 2022.

The advertisement was published in all 11 official languages.

The Committee received submissions on the Bill from the following stakeholders: 1.

Businesses Unity South Africa 2.

Congress of South African Trade Unions 3.

Injured Workers Action Group 4.

Compsol 5.

COIDLINK.


2 102 The Committee held public hearings on 22 February 2022, and received responses from the Department of Employment and Labour on 8 March 2022 on the submissions received.

On 15 March 2022, the Committee deliberated on the Bill.

4.

Outcome of Committee’s consideration of the Bill Five members of the African National Congress voted in support of the Bill.

Two members of the Democratic Alliance voted against the Bill.

5.
5.

Conclusion The Committee agreed to the Bill with proposed amendments.

Report to be considered.

3 103